224 La. 995

#### Succession of THOMPSON.

No. 41245.

Supreme Court of Louisiana.

Feb. 15, 1954.

Rehearing Denied March 22, 1954.

Percy, MacMurdo & Avant, Baton Rouge, for plaintiff-appellant.

Joseph W. Starring, Baton Rouge, for intervenor.

FRUGE, Justice (ad hoc).

Corenthia Youngblood Thompson, born out of wedlock, died intestate. The claimants to her estate are Emaline Lewis ■Banks, her mother, and Willie Thompson, her surviving husband. The district court rendered judgment in favor of the surviving husband and the mother has perfected this appeal. ,

Emaline' Lewis Banks is claiming the estate under Article 922 of the Louisiana Statute's Annotated-Civil 'Code which provides as follows: '

> “Art. 922. The estate of a natural child deceased without posterity, belongs to the father or mother who has acknowledged him, or in equal portions to the father and mother, when he has been acknowledged by both of them.”

Emaline Lewis Banks had acknowledged. Corenthia Youngblood as her child in conformity with Article 203 of the Louisiana Statutes Annotated-Civil Code. This acknowledgment had the effect of changing the status of Corenthia Young-blood from an illegitimate child to that of a natural child. State v. De Lavallade, 1949, 215 La. 123, 39 So.2d 845. It also had the effect of giving Emaline Lewis Banks a right to the estate of the natural child deceased without posterity by virtue of Article 922 of the Louisiana Statute Annotated-Civil Code, supra.

Willie • Thompson, however, claims the estate under Article 924 of the Louisiana Statutes Annotated-Civil Code, which provides as follows:

> *545“Art. 924. If a married ' man has' left no lawful descendants'nor ascendants, nor any collateral relations, but ■a surviving wife not ’ separated from bed and board from him, the'wife shall inherit from him to the exclusion of any natural child or children duly acknowledged. .

> , “If, on the contrary, it is the wife who died without leaving any lawful descendants, ascendants, ■ or collateral relations, her surviving husband not. separated from bed and board from her, shall not inherit from her, except in case she should leave no natural child or children by her duly acknowledged.” ' .

His contention is that as the deceased left no natural child or children by her duly acknowledged, he takes the estate to the exclusion of her natural mother.

While this Court has not heretofore decided a contest between a natural mother and a surviving husband for the estate of a natural child deceased without posterity, it has decided the contest between a natural brother or sister and a surviving spouse for the estate of a natural child dé-' ceased without posterity. Article 923 which provides the right of the natural ’ brothers and sisters'to inherit in the estate of a natural child whose mother and father predeceased him is a companion article to Article 922. If this right given to the natural brothers and sisters by Article 923 is qualified by the right given to the surviving spouse by Article 924, then by analogy, the right given to the natural mother by Article 922 would also be qualified by the right given to the surviving spouse by Article 924.

The first case before this Court in which the question of whether the surviving spouse was to be preferred as a successor over the natural brother of the deceased was that of Victor v. Tagiasco’s Ex’r, 6 La. 642, decided in 1834. The Court of Probate had decided the question in favor of the surviving husband. On appeal, this Court declared:

> “The Court of Probates has thought that the article being clear and free from ambiguity, and the plaintiff having brought himself clear within it, his pretensions could not be resisted: that the article 918 could only be reconciled with the preceding by being considered as, an exception thereto; -and that it could be more easily reconciled with it, than.with the article 923.

> “On' the’ part of the appellant we have been referred to the works of several French a’uthors on thé construction. and interpretation of several articles of the Napoleon Code which are similar to those of the La.Code,' relied on in this case, and which are considered to bear very great analogy to the latter. S. Tissandier 385 No. 1945. Favard de L’Anglade des successions 154. Rogrion on article 766 de Code Napoleon. 4 Toullier 280 No. 269 3 Duranton livre 3, titre 1.

> “It has appeared to' us that the Court of Probates did not err. In our legislation- the surviving wife is preferred to .all * * *. the natural relations of the husband, and he to all her natural relations except those in the descending line. La.Code 918 and 913. It is true some provision is made for natural brothers and sisters and their descendants, lb. 917; to which an exception is made for the surviving wife or husband. Ib. 918. If in order to place either of these in the situation the legislator has clearly assigned them natural brothers and sisters, or their descendants are in certain cases postponed-to the former; Courts of Justice merely comply with the will of the legislator in giving to the surviving spouse his legitimate rank.”-

This principle was reaffirmed in Succession of Ducloslange, 1847, 2 La.Ann. 98, Duplessis v. Young, 1856, 11 La.Ann. 120, and In re Nereaux’s Estate, 1904, 112 La. 572, 36 So. 594.

*546If the will of the legislator was clear we would have no difficulty in complying with it, in giving to the surviving spouse his “legitimate” rank. But the question of preference is not clear to us. While it is true that either Article 922 or Article 924 must yield to the other, neither our Code nor our jurisprudence contains sufficient reason for us to decide which must yield.

In turning to the articles of the Code Napoleon of 1804 and to the works of several French commentators on the construction and interpretation of several articles similar to our own, we find that the French have qualified their Article 924, C.N.1804, Art. 767, by their Article 922, C.N, 1804, Art. 76S, . and have given the natural mother and father a right of inheritance equal to the position which the lawful mother and father enjoy in the succession of a legitimate child. And this, the French say, is as it should be, for when the natural mother or father has acknowledged their child they have fulfilled the duties of nature, and deserve to enjoy all the rights of parenthood. Tissandier, Traité méthod-ique et complet (1863), T. 8, p. 285, Sec. 1944. As concerns the right of the surviving spouse, the French say that no matter how close may have been the bond which united the surviving spouse to the deceased, he or she belongs to a foreign family, has rights of succession in that family, and should not have rights in another except where there does not exist any relative. Rogron, Les Codes Frangais Expliqués, (3® éd.1847), T. 1, p. 135, n° 767.

We are inclined to agree with the French in the interpretation of these articles. Articles 917, 924, and 929 set forth the classes of irregular successors and their ordér of preference. Articles 922 and 923 are more in the nature of special legislation in relation to the successions of natural children who die without posterity. While the preceding article (921) reiterates the principle that natural children have no right of inheritance to the estate of the legitimate relations of their father or mother, nevertheless, by the provisions of Article 923 the , law grants to natural brothers and sisters, or to their descendants, the right to inherit the estate of a natural child whose mother and father have predeceased him — the implication necessarily being that in such case the natural child has herself left no natural children, duly acknowledged, who would inherit according to the terms of Article 918. It follows that Article 924 must be construed with reference to the preceding articles, and that these provisions of our Code “may be regarded as one continuous act of legislation in pari materia.” See Layre v. Pasco, 5 Rob. 9; Laclotte’s Heirs v. Labarre, 11 La. 179.

For these reasons we feel that the right of the natural mother is to be preferred to the right of the surviving husband. We do not agree with the analysis given in Victor v. Tagiasco’s Estate, supra, reaffirmed in Succession of Ducloslange, supra, and therefore choose not to follow it.

As pointed out by the trial judge in his reasons for judgment: “There is no showing as to whether the property, both real and personal, described in the Succession of Corenthia Youngblood Thompson, was owned by decedent in community with her husband.” Consequently he did not decide, nor did he pass judgment on the rights of claimants to the decedent’s interest in the community property, being of the opinion that “it makes no difference whether the property was the separate estate of decedent or owned by her in community with her surviving'husband. Whatever her interest in the property * * * would go to the husband and' not to the natural mother.”

. For the reasons assigned the judgment of the lower court insofar as it decrees “that Willie Thompson is recognized as the sole heir at law of the said Corenthia Young-blood Thompson, deceased,' and as such he is the owner of all of the property of whatever kind ■ or nature depending upon this succession, and he is sent and put into possession of the same” is annulled and set aside; and it is now ordered and adjudged *547that-Emaline Lewis Banks is decreed to.be the owner of the "estate” of Corenthia Youngblood Thompson, deceased.

It is further ordered that the case be remanded to the lower court to determine what portion of the estate is separate property of the deceased and what portion belongs to the community formerly existing between the decedent and Willie Thompson and to render judgment- sending the proper parties in possession thereof in accordance with law and not inconsistent with the views herein expressed.

Costs to be paid out of the mass of the estate.

HAWTHORNE, Justice

(dissenting).

The error of the majority, in my opinion, is in deciding this case according to what they consider the law ought to be, rather than according to what the writers of our Code intended to be the -law. As noted in the majority opinion, this court observed at an early date that the redactors of our Code had not followed the French view as to the place of a surviving spouse in an irregular -succession. The French in their Code of 1804 provided that natural children would exclude a surviving spouse. Art. 767, French Civil Code. In our Code of 1808 the surviving wife excluded a natural child, and a surviving husband inherited from his wife in default of regular successors unless she left a natural child. Civil Code of 1808, p. 156, Art. 50. It was apparent to the court in 1834 in the case of Victor v. Tagiasco’s Ex’r, 6 La. 642, therefore, that our redactors by thus departing from the French had deliberately placed the surviving spouse ahead of all other irregular successors except the natural child in the succession of his mother.

In Succession of Ducloslange, 2 La.Ann. 98, this court’ discussed thoroughly the issue presented by the majority opinion in the instant case and said: “After mature consideration, we are satisfied that, the opinion in that case [Victor v. Tagiasco’s Executor] is a correct exposition of the law of irregular successions.” In my opinion this court should give ' more • “mature consideration” to the reasoning in the -Du-closlange case before upsetting the jurisprudence on this, point. In addition to the cases cited in the majority opinion the view of the Victor case has been followed in Montegut v. Bacas, 42 La.Ann. 158, 7 So. 449; Succession of Falls, 4 La.App. 10; Hite v. Hite, La.App., 171 So. 429; Wilson v. Rogers, La.App., 14 So.2d 650.

Although the Code has been revised since this was established as the law by the jurisprudence, no change was made in the articles at issue -here, and the Legislature has never amended the articles to reject this court’s interpretation. Furthermore, the natural mother, plaintiff-appellant, does not attáck the reasoning in these cases or suggest that it be rejected and the cases overruled. The basis of her whole argument is that the words “lawful ascendants” in Article 924 should be liberally construed to include a mother who has acknowledged her illegitimate child. This argument, of course, could not prevail. See Succession of Wesley, 224 La. 182, 69 So.2d 8. Under these circumstances this line of jurisprudence should not be rejected except for the most compelling reasons and a clear showing that we had previously erred-. ’

-The majority of the court say that .they are changing the jurisprudence -because they agree with the discussions of the two French commentators Tissandier. and Rog-ron; The Tissandier discussion cited is concerned with the reasons why the French departed from the French customary law which did not allow an illegitimate, without descendants, to succeed to anyone, and likewise allowed no one to succeed to him, and explains why the natural relatives .of-the natural child should be preferred to the state. The preference of the natural relatives over the spouse is not a part of the discussion cited in the majority opinion. The Rogron discussion sets out reasons for favoring natural relatives over a surviving spouse, i. e., he or she is a stranger to the deceased and has succession rights in his or her own family. Such reasoning was clearly rejected by our redactors when they drafted the first paragraph of Article 924 *548favoring the surviving wife over a natural child.

That our legislators have not considered the surviving spouse the “stranger” to the deceased as have the French is further shown by Louisiana Act 408 of 1938, amending Article 915 of the Civil Code. By that act the surviving spouse was made a *legal heir*as to the community property. Such legislation is inconsistent with the “stranger” view of the French. The French on the other hand by Law of March 25, 1896, have made natural children and their parents regular .successors as to - each other. The divergence of viewpoint that existed when the French Code of 1804 and our Code of 1808 were written, therefore, has been extended in each system of law by subsequent legislation. •

I am reminded by the court’s method of decision in this case of the observation of Cross in his introduction.to his Treatise on Successions. He points out that our succession law has been affected by nine different systems of laws,, and that the authority of the French commentators on the Code Napoleon is often misapplied in consequence of not regarding the fundamental differences which exist in .many departments of doctrine between the two systems. Cross on Succession, pp.' vii-xxx. The reasoning of the French commentators adopted by the court in this case is not sufficient to cause me to subscribe to the decision overruling a long line of jurisprudence. If the law relating to irregular succession' should be- changed to reflect changed social thinking, that is a matter for the Legislature.

By giving complete effect to the French view of the low position of a spouse in the succession line and disregarding the clear rejection of that view in our Code in Article 924, the court in this opinion adds confusion to our law rather than clarifying it. Will a natural mother now be permitted to participate with a surviving wife in the community estate under Article 915, even though a natural child would be excluded under Articles 919 and 924? The reasoning of the majority that-the natural mother and father should enjoy a right of inheritance equal to the position of the lawful mother and father in the succession of a legitimate child indicates such a result. How will a conflict among a natural mother, a natural child, and a surviving spouse as to a deceased’s separate estate be resolved? Under Article 924 the wife will prime the child, under Article 922 the child will prime the mother, and under this decision the mother will prime the wife. This vicious circle demonstrates that the court is proceeding under a theory that is not consistent with that of the redactors of the Code. The decisions in the cases that the court rejects here were consistent with the codal text and eliminated such irreconcilable conflicts. I consider those decisions to be sound and therefore respectfully dissents