Statement of the Case.
MONROE, C. J.
Victoria White Mingo, wife of Smiley Mingo, died, without issue, in the parish of Tangipahoa, in July, 1915, leaving certain sums of money, approximating $800, on deposit in two of the banks of New Orleans, and shortly thereafter Ernest Delpit and others (whom we shall call plaintiffs), appearing as her brothers and sisters, caused her succession to be opened and obtained a judgment ordering that they be put in possession, as her heirs at law, of such property and money as she had acquired pri- or to the month of November, 1909, and particularly of the money in the banks, alleging that the same was her separate property.
They then ruled the German American Branch of the Canal Louisiana Bank & Trust Company, in which there appears to be a deposit amounting to $736.50, requiring it to show cause on December 13th following why it should not pay over said deposit, to which the bank answered that it could not safely make the payment; that decedent was a married woman, and had left both separate and community property; that she had drawn out more money after 1909 than she then had on deposit; and that respondent was unable to ascertain what proportion of the amount on deposit at the time of her death belonged to her heirs, and what proportion to the pre-existing community; and respondent prayed to be dismissed with costs, or permitted to deposit the amount in its hands in the registry of the court, and that plaintiffs in rule and the surviving husband be cited to appear and litigate their respective claims. Thereupon the surviving husband intervened, alleging that Victoria Doueet, the mother of the decedent, was a slave at the time of the birth of her children, and the alleged father, Luke Delpit, a white man, and that no marriage could have taken place between them. Wherefore he prayed that the judgment sending plaintiffs into possession be annulled, and that he be recognized as the sole heir of his wife. Plaintiffs answered the intervention, the case was tried, mainly upon an agreed statement of facts, and there was judgment in favor of the intervener, from which plaintiffs prosecute this appeal.
It is admitted that Victoria Doueet was a slave of the African race “until emancipated by the Constitution and laws of the United States and of the state of Louisiana”; that she belonged to Luke Delpit, who was a white man, native of Italy, and naturalized citizen of the United States; that, after he became her owner, she bore the children whose names are given by plaintiffs in their original petition herein filed; and that she died in 1899, Delpit having died in 1867.
[301]*301It is further admitted that “one of the daughters of Victoria Doucet” married-White, and, after his death, married Smiley Mingo, and that, departing this life on July 30, 1915, she left no issue of either marriage. There is filed in evidence a certificate showing that Smiley Mingo and Victoria White were married on November 30, 1909, and there are two copies of recorded instruments, from which it appears that Luke Del-pit and “Catherine Doucet” were married in New Orleans, with the blessing of the Catholic Church, on December 13, 1865 — one of said instruments containing the following paragraph, to wit:
“Further, the children of both sexes born to these two parties before their legitimate union are, by this act, legitimized.”
Farther than the admission “that, after the purchase of said slave, Victoria Doucet, by Luke Delpit, she bore the children whose names are given in the petition filed in this suit on October 30, 1915,” there is nothing in the record, in the way of evidence, which tends to identify plaintiffs as the children referred to in the paragraph thus quoted, or to identify the Victoria Doucet mentioned in plaintiff’s petition and in the statement of facts with the Catherine Doucet, named in the marriage certificates, as the person who became the wife of Luke Delpit. It seems, however, to be conceded in the briefs that the two names describe the same person.
Opinion.
In December, 1865, when Luke Delpit and Catherine Doucet assumed to intermarry and to legitimate an unstated number of unnamed children, born to them “before their legitimate union,” the Civil Code of Louisiana contained provisions declaring (article 95) that frée persons and slaves were incapable of intermarriage, that the celebration of such marriages was prohibited and the marriages void, and that “there is the same incapacity and the same nullity with respect to marriages contracted by free white persons with free people of color”; further declaring (article 217) that children born out of marriage, “except those who are born from incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother whenever the latter have legally acknowledged them for their children, either before their marriage or by their contract of marriage itself”; that (article 221) “the acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the xiresence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child.” No other proof of acknowledgment shall be admitted in favor of children of color; that (article 222) “such acknowledgment shall not be made in favor of the children produced by an incestuous or adulterous connection”; that (article 226) “illegitimate children who have not been legally acknowledged may be allowed to prove their paternal descent, provided they be free and white. Free illegitimate children of color may also be allowed to prove their descent from a father of color only”; that (article 230) “illegitimate children of every description may make proof of their maternal descent, provided the mother be not a married woman”; that (article 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, * * *
or collaterals of lawful kindred”; that (article 918) the wife, not separated from bed and board, inherits from the husband to the exclusion of natural children, but, where the husband survives, the natural child of the wife is preferred (but not the natural brothers and sisters).
[1] It is here argued on behalf of plain[303]*303tiffs that the Eriiancipation Proclamation, issued in January, 1863, and the Constitution, adopted (or said to have been adopted) in this state in 1864, not only abolished and prohibited slavery in Louisiana, but also nullified those provisions of the state law prohibiting marriages between free white persons and free people of color; but our understanding of the matter is that, in such cases, the existing law is abrogated or nullified only to the extent that it conflicts with the later and higher law, and, as the question of marriage in this state was not a matter for the Proclamation to deal with, and was not referred to, either in the Proclamation or the Constitution, the existing law upon the subject was nbt affected by those instruments.
In 1868 (some three years after the attempted marriage between, and acknowledgment by, Luke Delpit and Catherine Doucet, and the year following the death of Doucet) a new state Constitution was adopted, followed by legislation concerning which this court has said:
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Statement of the Case.
MONROE, C. J.
Victoria White Mingo, wife of Smiley Mingo, died, without issue, in the parish of Tangipahoa, in July, 1915, leaving certain sums of money, approximating $800, on deposit in two of the banks of New Orleans, and shortly thereafter Ernest Delpit and others (whom we shall call plaintiffs), appearing as her brothers and sisters, caused her succession to be opened and obtained a judgment ordering that they be put in possession, as her heirs at law, of such property and money as she had acquired pri- or to the month of November, 1909, and particularly of the money in the banks, alleging that the same was her separate property.
They then ruled the German American Branch of the Canal Louisiana Bank & Trust Company, in which there appears to be a deposit amounting to $736.50, requiring it to show cause on December 13th following why it should not pay over said deposit, to which the bank answered that it could not safely make the payment; that decedent was a married woman, and had left both separate and community property; that she had drawn out more money after 1909 than she then had on deposit; and that respondent was unable to ascertain what proportion of the amount on deposit at the time of her death belonged to her heirs, and what proportion to the pre-existing community; and respondent prayed to be dismissed with costs, or permitted to deposit the amount in its hands in the registry of the court, and that plaintiffs in rule and the surviving husband be cited to appear and litigate their respective claims. Thereupon the surviving husband intervened, alleging that Victoria Doueet, the mother of the decedent, was a slave at the time of the birth of her children, and the alleged father, Luke Delpit, a white man, and that no marriage could have taken place between them. Wherefore he prayed that the judgment sending plaintiffs into possession be annulled, and that he be recognized as the sole heir of his wife. Plaintiffs answered the intervention, the case was tried, mainly upon an agreed statement of facts, and there was judgment in favor of the intervener, from which plaintiffs prosecute this appeal.
It is admitted that Victoria Doueet was a slave of the African race “until emancipated by the Constitution and laws of the United States and of the state of Louisiana”; that she belonged to Luke Delpit, who was a white man, native of Italy, and naturalized citizen of the United States; that, after he became her owner, she bore the children whose names are given by plaintiffs in their original petition herein filed; and that she died in 1899, Delpit having died in 1867.
[301]*301It is further admitted that “one of the daughters of Victoria Doucet” married-White, and, after his death, married Smiley Mingo, and that, departing this life on July 30, 1915, she left no issue of either marriage. There is filed in evidence a certificate showing that Smiley Mingo and Victoria White were married on November 30, 1909, and there are two copies of recorded instruments, from which it appears that Luke Del-pit and “Catherine Doucet” were married in New Orleans, with the blessing of the Catholic Church, on December 13, 1865 — one of said instruments containing the following paragraph, to wit:
“Further, the children of both sexes born to these two parties before their legitimate union are, by this act, legitimized.”
Farther than the admission “that, after the purchase of said slave, Victoria Doucet, by Luke Delpit, she bore the children whose names are given in the petition filed in this suit on October 30, 1915,” there is nothing in the record, in the way of evidence, which tends to identify plaintiffs as the children referred to in the paragraph thus quoted, or to identify the Victoria Doucet mentioned in plaintiff’s petition and in the statement of facts with the Catherine Doucet, named in the marriage certificates, as the person who became the wife of Luke Delpit. It seems, however, to be conceded in the briefs that the two names describe the same person.
Opinion.
In December, 1865, when Luke Delpit and Catherine Doucet assumed to intermarry and to legitimate an unstated number of unnamed children, born to them “before their legitimate union,” the Civil Code of Louisiana contained provisions declaring (article 95) that frée persons and slaves were incapable of intermarriage, that the celebration of such marriages was prohibited and the marriages void, and that “there is the same incapacity and the same nullity with respect to marriages contracted by free white persons with free people of color”; further declaring (article 217) that children born out of marriage, “except those who are born from incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother whenever the latter have legally acknowledged them for their children, either before their marriage or by their contract of marriage itself”; that (article 221) “the acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the xiresence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child.” No other proof of acknowledgment shall be admitted in favor of children of color; that (article 222) “such acknowledgment shall not be made in favor of the children produced by an incestuous or adulterous connection”; that (article 226) “illegitimate children who have not been legally acknowledged may be allowed to prove their paternal descent, provided they be free and white. Free illegitimate children of color may also be allowed to prove their descent from a father of color only”; that (article 230) “illegitimate children of every description may make proof of their maternal descent, provided the mother be not a married woman”; that (article 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, * * *
or collaterals of lawful kindred”; that (article 918) the wife, not separated from bed and board, inherits from the husband to the exclusion of natural children, but, where the husband survives, the natural child of the wife is preferred (but not the natural brothers and sisters).
[1] It is here argued on behalf of plain[303]*303tiffs that the Eriiancipation Proclamation, issued in January, 1863, and the Constitution, adopted (or said to have been adopted) in this state in 1864, not only abolished and prohibited slavery in Louisiana, but also nullified those provisions of the state law prohibiting marriages between free white persons and free people of color; but our understanding of the matter is that, in such cases, the existing law is abrogated or nullified only to the extent that it conflicts with the later and higher law, and, as the question of marriage in this state was not a matter for the Proclamation to deal with, and was not referred to, either in the Proclamation or the Constitution, the existing law upon the subject was nbt affected by those instruments.
In 1868 (some three years after the attempted marriage between, and acknowledgment by, Luke Delpit and Catherine Doucet, and the year following the death of Doucet) a new state Constitution was adopted, followed by legislation concerning which this court has said:
“The Constitution of 1868 and the statutes subsequently passed * * * were designed to concede to all persons, without distinction or difference of race, or color or previous condition, the privilege's of legally intermarrying and thereby legitimating their previously acknowledged issue,” etc. Succession of Colwell, 34 La. Ann. 268.
The case thus cited was one in which the children of a white man by a colored woman claimed his succession to the exclusion of his sisters, and in which it appeared that the children were conceived and born during the period when their parents were prohibited on account of racial differences from intermarrying; that in 1878 (after that prohibition had been withdrawn, and after the enactment of a statute, Act 68 of 1870, which declared that natural children might be legitimated by notarial act, “provided that there existed at the time of the conception of such children no other legal impediments to the intermarriage of their natural father and mother, except those resulting from color or the institution of slavery”), the parents had, by notarial act, declared their children legitimate and had thereafter intermarried. The court, through Bermudez, O. J., said:
“The question to be determined is, simply, whether the marriage * * * legitimated those children. * * * It is clear that if, at the celebration of the marriage, article 95 of the Civil Code of 1825 had preserved its original force, the question would be summarily solved in the negative — [Dupre v. Boulard’s Ex’r] 10 [La.] Ann. 411; [Succession of Fletcher] 11 [La.] Ann. 59; [Succession of Minvielle] 15 [La.] Ann. 342; [Kinney v. Commonwealth] 30 Grat. [Va.] 858 [32 Am. Rep. 690] — as the marriage would have taken place in the very teeth of a local prohibitory law, and so would have been absolutely null. * * * The fact that the article was expunged from the Revised Civil Code of 1870 is highly significant and telling. * * * In consequence of that repeal the marriage could be, and was, legally contracted.”
And after an extended consideration of the changes which had been made in the law by the Constitution of 1868 and the legislation which followed, the court held that:
“Children conceived by persons who at the time were prohibited from contracting marriage on account of disparity of race may, after being duly acknowledged, be legitimated and given the right of heirs, by the marriage of their authors, [duly] celebrated after the impediment has been removed by law.”
[2] In the instant case, article 95 of the Code, and the other provisions to which we have referred, having, as we have stated, been in force when the marriage and acknowledgment by Luke Delpit and Catherine Doucet were attempted, that attempt was in violation of a prohibitory law, founded in public policy, and accomplished no legal result, from which it follows that the plaintiffs continued to be unacknowledged natural children; but whether issue of the connection between Luke Delpit and Victoria (or Catherine) Doucet, this record does not enable us to determine, it being admitted, merely, that after her purchase by Delpit “Victoria Doucet bore the children whose names are given in the petition filed in this suit on October 30, [305]*3051915,” to which it may be added that in the instrument whereby it is said that plaintiffs were acknowledged and legitimated they are referred to without other identification than the following:
“Furthermore, the children of both sexes born to these parties before their legitimate union are, by this act, legitimated.”
The case, therefore, falls under the second paragraph of article 918 of the Civil Code, which declares, in effect, that the surviving husband, not separated in bed and board from his wife (in this instance, the intervener), inherits her estate, in the absence of “lawful” ascendants, descendants, collaterals, or natural children, “duly acknowledged.” Succession of Ducloslange, 1 La. Ann. 182; Id., 2 La. Ann. 98; Succession of Briscoe, 2 La. Ann. 268; Montegut v. Bacas, Ex’r, 42 La. Ann. 158, 7 South. 449; In re Nereaux Estate 112 La. 574, 36 South. 594.
The judgment appealed from is therefore affirmed.