Succession of Caballero v.

Taliaferro, J. The plaintiff Mrs. Conté, claiming to be the sole heir of J. M. Caballero, sues to set aside bis will, to annul certain legacies contained in it and to be put in possession of the estate. Her — 574 — claims are opposed by the universal legatee and by the particular legatees. They aver that the plaintiff is illegitimate, her parents never-having been married legally. JThat being born of a colored woman she could not have been acknowledged or legitimated by marriage-under the laws of Louisiana prior to her father’s decease, and that she is consequently incapacitated to receive anything from the estate of Caballero by inheritance as an heir. This is met by the averment that the father and mother of the plaintiff were married in Havana, where the laws of Spain are in force, and that the Spanish laws determine the condition and rights of the parties resulting from their-marriage. The judgment of the court below was in favor of the plaintiff. The executor has appealed-. Caballero, a native of Spain, came to New Orleans in the year 1832,. became a citizen of the United States and lived in New Orleans until the \ear 1856, when he returned to his native country, taking Havana in his way, where he remained a short time. During his residence in Louisiana he lived in intimacy with a colored woman, by whom, it seems, he had several children, the plaintiff in this case being the only one of them now living. She was born in February, 1840. Caballero made an olographic will, dated March 21, 1852, and ratified it in January, 1856. After making various legacies for charitable purposes he constituted Basualdo his universal legatee, and named him as executor.I In March, 1856, Caballero left New Orleans for Cadiz, in Spain, and at Havana, in April following, he was married to Carolina Yisinier, the plaintiff’s mother. He proceeded to Spain, where he resided about three years, and then returned to New Orleans, where he died in the spring of the year 1866. Under this state of facts it is important to ascertain whether the removal of Caballero to Spain was made wpo mcmenck, with the purpose of being permanently there; for if he was merely sojourning in Havana and Cadiz, and went there temporarily for the purpose Qf legitimating his daughter by the ■ marriage with her mother, and with the purpose of evading the laws of Louisiana, which at that period presented an impediment to the accomplishment of his purpose, a grave doubt might arise as to the legal effect in Louisiana of a marriage so contracted. We think, however, the evidence warrants the conclusion that in going to Spain his purpose was to spend the remainder of his life in his native country. It is shown that on his return he made declarations to that effect in Cadiz,' and these declarations are strongly corroborated by several facts ■ which seem to go far to establish the truth of these declarations. He was a man of ample fortune. He sold his family tomb in New Orleans for a large price and carried with him the remains • of his children and placed them in a tomb which he had built — 575 — in Cadiz at an expense of $25,000. He purchased' there a costly dwelling house, made expensive repairs upon it, and resided in it with his family. It is fully proved that such a marriage as the one between Caballero and Carolina Visinier, that took place at Havana, is legal by the laws of Spain. A judicial order was rendered by a competent judge legitimating the daughter, and upon that occasion the record of her birth and baptism in New Orleans was transcribed in the record of baptisms in Havana. We understand the rule to be well settled that marriages valid by the laws of the country where they are entered into, are held valid in any other country to which the parties may remove, unless there-exists, from leasons of public policy, in the country to which they remove, some impediment by the laws of that country, or that such marriages are in derogation of good morals. In such exceptional cases comity could not' be invoked to recognize their validity. How stands the matter in regard to the rights of Mrs. Contó, the plaintiff in this case ? Here we may notice that this person, alter her parents removed from Louisiana to Spain, never returned to Louisiana to live, and that she is a subject of the government of Spain. At the time of her legitimation by the marriage of her parents, marriage between white persons and free persons of color was prohibited by our law. The Louisiana law would not have recognized as valid in Louisiana the marriage of Caballero in Havana. What was the consequence, then, upon his return to Louisiana? It resulted that there was in this State no community of acquets and gains between the parties to that marriage. Had there been children born to them in Louisiana after that marriage, they would have been by our law illegitimate. Thus far would our law have extended and had effect when Caballero returned to. Louisiana, but no further. Its edict, so far as it bore upon his marriage, was of local and limited effect.' It existed for a purpose local and special in this country. That purpose could not have been more effectually carried out by withholding from persons abroad, legitimate by the laws of the country where they lived, the right of inheriting property in this State. It could not and did not aim to affect elsewhere the validity of a marriage like that of the parents of the plaintiff. It was strictly personal to parties living in Louisiana who had anywhere contracted the kind of marriage not permitted by its policy, and did not, as in the plaintiff’s case, affect the children of such parents legitimated in other countries and not incapacitated here on other grounds.. The policy of this State had no broader extent, because there was no reason why it should have. Gessante rations eessat et vpsa lex Accordingly we find that there was not, at the period we have referrence to, nor is there now, any law of Louisiana rendering Mrs. Contó incapable of inheriting in this State,/ — 576 — But conceding it to be true, as alleged, that by our law there existed an incapacity in the plaintiff to inherit, and that that incapacity was fixed at the opening of her father’s succession, we should not regard it as fixed irrevocably. If the incapacity contended for existed, that condition was fixed relatively to the laws, the public policy and. the general state of things then existing] It was not necessarily an irrevocable doom. It'did not cut her off from benefits that might occur amid the ceaseless mutations of human affairs, from advantages that might arise in the future from a changed condition of law and public policy. Her rights resulting from her legitimacy by the laws of Spain were subsisting and continuing rights. They ran pari passu with the law and the public policy which incapacitated her until that law and policy disappeared, her rights surviving. Mrs. Conté, as we have seen, was born in February, 1840, and her father’s testament is dated in March, 1852, nearly twelve years after her birth. Did the testament fall by her legitimation in April, 1856? This presents another and a more difficult question. Anide 1556 of our Civil Code, in the chapiter that treats of donations inter vimos, adopting article 960 of the Code Napoleon, declares that “ all donations inter vivos made by persons having neither children nqr descendants actually living at the time of the donation, of whatever value those donations may be, .and on whatever account they may have been made, should they even be mutual, not excepting such as were made in favor of marriage, by any but the ascendants of the married persons, or by the one of them to the other, shall be considered as revoked, up to the disposable portion by the birth of children to the donor, even of a posthumous child, or by the legitimation of a natural child, if the child be born since the donation.” Article 1698 of the Louisiana Code, in the chapter that treats of donations mortis causa, declares that “ the testament falls by the birth of legitimate children of the testator posterior to its date.” There is no article of the Napoleon Code corresponding to this article. The French authorities referred to by counsel do not seem to afford much aid in determining the proper interpretation of article 1698 of our Code. On the question now before us the weight of authority found in the writings of the French jurists would seem to be in favor of the affirmative side of the question; but the solution must mainly be sought for in the interpretation together of the articles of our Code, and in ascertaining the spirit and purpose of our legislators in constructing our law bearing on the question. The policy of our law is to reprobate concubinage and the rearing of spurious offspring, an evil so well calculated to demoralize society. On the other hand, marriage sanctioned by Divine authority is highly favored and encouraged. The lawmaker, by liberal provisions, enables and invites the parent — 577 — of illegitimate offspring to repair civilly the wrongs which he has inflicted upon his children, wholly innocent of the offense for which they are proscribed. Actuated by the strong desire in justice to relieve the innocent, and in the interests of society, the legislator holds out the strong inducement of conferring upon the unfortunate children of unmarried parents all the benefits of legitimacy. This benevolent purpose seems to be announced by article 219 of the Code, which declares that “children legitimated by a .subsequent marriage have the same rights as if they were born during marriage.’’ In view of the reasons upon which the law expressed by this article is manifestly founded, we can not clearly perceive why the lawgiver ‘should make any exception in conferring upon illegitimates the benefits of legydmac.v. If they, are to have the same rights that appertain to legitimates, the impression is strong that no right belonging to legitimates is withheld, otherwise the benefit proposed would, in its most essential feature, be to a great extent destroyed, for the right of inheritance would, in cases like the one at bar, be denied. When a parent legitimates by marriage his illegitimate children, it would seem to be a fair presumption that he desires they should have all the rights they would have possessed had they been born during marriage. A right consequent upon legitimacy at birth is that of annulling donations made by the parent previously/ If children, illegitimate by birth and subsequently legitimated by marriage, are to possess all the legal rights of the other class — and this we may presume to have been the object of the parent in legitimating them — the article 1698 of the Code should be construed liberally to secure the right sought to be obtained by the commendable act of the parent. A liberal interpretation of article 1698 we think would not regard its provisions as forming an exception to article 219, and exclude one class of heirs from the benefits conferred upon another. In the case of Lewis v. Hare, 8 An., p. 378, it was contended that a testament does not fall on the birth of a posthumous child, or at least it would be sustained to the extent of the disposable portion in conformity with the provisions of article 1556 in regard to donations inter vivos. But our predecessors held “ there was no sufficient reason to narrow the terms of article 1698, which are unqualified and comprehend equally both classes of children.” In support of the view taken of the comprehensive terms of article 1698, the court said: .“ There is no reason to suppose that a testator would have been insensible to the welfare of a posthumous child if the contingency of its birth had suggested itself to his mind, any more than to suppose such insensibility in the case of a child born before his death. In both cases it is reasonable to presume the testator would have felt the promptings of parental love and the obligations of parental duty if the event had been foreseen. — 578 — By parity of reasoning, and also from the facts in this record that show the iervor with which the testator in this case cherished the dust of his dead children, is it unfair to infer that after legitimating his daughter he intended to revoke his testament ¶ — an act, however, which he did not perforin, but which it may be said he overlooked or thought unnecessary after .accomplishing her legitimation. 1 We think it is in conformity with the spirit of the decision in the case of Lewis v. Hare, just referred to, to conclude that tlie effect upon the testament of Caballero by the legitimation of his daughter is the same it would have been had her birth occurred posterior to1 the time at which it was made. It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs. 1$