In re the Tutorship of Upton

Duffel, J. This case presents but one point of law, which is: can an adopter appoint a testamentary tutor to the adopted minor, to the exclusion of the natural father ? The facts are briefly as follows: By an Act of the Legislature, approved March 15th 1852, John Upton, and his wife, Mary Ballingat Upton, were authorized to adopt by public act, the minor, Ellen Wilson. John Upton died shortly after without having passed the act, and afterward his widow executed the act of adoption, and became the tutrix of Ellen by the consent of the father. Mary Ballingat and William M. Wilson, the father of the minor, Ellen, subsequently intermarried, and were, after the marriage, separated in property by judgment. The mother by adoption, having made her will in favor of her adopted daughter, and' named Samuel W. Dorsey testamentary tutor, died. The natural father of Ellen Wilson Upton, now resists the application of S. W. Dorsey, for the tutorship under the will, of his child Ellen, and claims the same as surviving father. The District Judge conferred the tutorship on the testamentary tutor, and the opponent appealed. We are not called upon to decide if a father can, in any case, be excused from jhe tutorship of his child ; for whatever may have been the legal effect of the [176] renunciation made by tbe opponent, in favor of tlie mother by adoption, and her appointment as tutrix in consequence of said renunciation, the /death of the latter, to say the least, has reinstated the former in all his rights. iflence his_ex-clusion now from the tutorship, will depend either, on the true intent of the above stated Act of the Legislature, or on the absolute right of an adopter to appoint, by will, a tutor to the adopted ; as under the code, the tutorship of a minor child belongs of right to the surviving mother or father, Art. 268, and the right of appointing a tutor by will, belongs exclusively to the surviving father or mother, Arts. 275 and 281. It can not be said that the act of the Legislature authorising the adoption in this case, took away, or diminished, in expressed terms or by implication, any of the paternal prerogatives conferred by the Civil Code, Art. 234, 239, 268, 327. Adoption is of the oldest antiquity; it was known among the. Hebrews, the Assyrians, and the Egyptians; and formed a part of the Roman laws. It was introduced in Louisiana by Spain, but was expressly abolished by the Code of 1808, p. ■ 50, Art. 35, and the Code of 1825, Art. 232. — Both under the Roman and the Spanish laws, the child given in adoption by a father, to any other person than a descendant, remained, nevertheless, under the power of the natural father; and did not pass under the private dominion of the adopter. Cooper’s Justinian Lib. I. Tit. XI, Sect. 2. Febrero Adicionado, part L, Tom. 3. Cap. XV. Sect. 1. The Napoleon Code does not recognize the adoption of minors, Art. 346, but it has introduced, preparatory to an adoption, what is termed me tutelle offi-cieuse, Arts. 345, 361, 368. This officious tutorship does not, as a general rule, affect the power of the natural father over the person and property of the minor. Duranton Vol. 3, Tit VII, No. 339. We therefore conclude that the testatrix was without power to name a tutor to the minor. The evidence introduced, as an attempt to show the bad conduct of the opponent and his unfaithful administration, is wholly insufficient to exclude the opponent from the tutorship. • It is therefore ordered adjudged and decreed, that the judgment of the District Court be avoided and reversed. It is further ordered, adjudged and decreed, that the application of Saml. W. Dorsey be rejected at his costs in both courts. And it is further ordered, adjudged and decreed, that the opponent, William, M. Wilson be, and he is hereby confirmed in the natural tutorship of his minor child, Ellen Wilson Upton, and that letters of tutorship issue in his favor on his taking the oath required by law.