Hart v. Hoss

26 La. Ann. 90

• Court: Supreme Court of Louisiana
• Decided: February 15, 1874
• Docket: No. 4566
• Status: Published

Opinions

Taliaferro; J.

Two sets of litigants, claiming adversely to each ■other a large succession opened in the parish of Caddo in 1869, brought these suits against the two administrators of the estate, claiming it as heirs and praying to be put into possession of the property of the estate. One of the suits is brought in behalf of her children by Cornelia Hart, alleging that she is the widow of E. C. Hart, deceased, and natural tutrix of her minor children, issue of her marriage with the said Hart, and that they are the legal heirs of their father. The other suit was instituted by various persons, setting themselves up as the Dearest relatives of E. C. Hart and entitled to his estate as collateral 'heirs. The administrators answered separately. One of them, Elder, ¡answered by general denial. Hoss, the other administrator, specially denies the rights claimed by the tutrix for her minor children, and ¡avers specially that the plaintiff being a woman of color, she was prohibited by law from marrying E. C. Hart, and that her children could not be legitimated by a marriage subsequent to their conception and birth. He further averred that one Theodore Hart and others claimed “to be the heirs of E. C. Hart, deceased. The two suits were consolidated and tried together in the parish court. Judgment was rendered in favor of the tutrix, recognizing her as the lawful wife of E. C. Hart, deceased, and the children represented by her as the legitimate children and heirs of E. C. Hart, ordering that the tutrix be put into possession of the property of his estate, and rejecting the pretensions of Theodore Hart et al. From this judgment Hoss, one of the administrators, and Theodore Hart and his co-plaintiff, have appealed.

There is an exception by the administrator Elder to the jurisdiction of the court quoad the suit of Theodore Hart et- al. on the ground that ¡the plaintiffs in that case are claiming adversely to Cornelia Hart, •tutrix, a succession worth more than five hundred dollars. In each ¡suit the plaintiffs are claiming to be heirs of E. C. Hart, deceased, and pray to be recognized as such and to be put into possession of his estate. 'Their claims are adverse to each other.' But neither is suing the other for the succession. The issue before the court is, which of the parties plaintiffs, if either, are the heirs of El C. Hart. The leading question is, which of these parties, if either, shall be recognized as the heirs of ■the decedent. The parish court clearly has jurisdiction. Code of Practice, articles 1000 and 1003.

The material facts elicited by this litigation are, that E. C. Hart, whose succession forms the bone of contention, lived a number of years in concubinage with the plaintiff Cornelia, a woman of color. ¡Several children, all minors at the time of Hart’s death in 1869, were the fruit of this intercourse. In November, 1867, Hart and Cornelia were married in Shreveport, about eighteen mouths before the decease ¡of Hart. This marriage was solemnized by a Roman Catholic priest in .accordance with the forms of the Roman Catholic Church. A regular joroees verbal of the ceremony of mamage was made out and signed by the parties to the marriage, by three witnesses and by the priest who officiated. No marriage license was issued, and no return was made of the act of celebration for record.

Subsequently the children were baptized by the same priest, of which he furnished a certificate. At the baptism the father was not present, but it is shown that it was done at his instance and by his consent The plaintiff Cornelia, was confirmed natural tutrix of her minor children, representing them to be the legal heirs of E. 0. Hart, deceased. Letters of tutorship were issued to her and an under tutor appointed.

The ground assumed in this controversy by Theodore Hart and others claiming as the collateral heirs is, that at the date of the alleged' marriage between E. C. Hart and Cornelia the plaintiff, marriage-between a white person and a person of color was prohibited by the laws of Louisiana, and that the pretended marriage of those persons-was null as having been entered into in violation of a prohibitory law. They urge that the marriage was a “private marriage” in the sense of the statute of 1868, No. 210, pages 278 and 279; that proof of that class-of marriages can only be made by notarial act executed by the parties-in conformity with the provisions of that act. They further contend that aside from the question of color, the illegitimacy of the children, arising from their having been born out of wedlock operates an incapacity to inherit which can only be removed by legitimation in the manner prescribed by law, and refer to Civil Code, articles 180, 198 and 200. They assumed from these articles and from the statute of 1870, entitled “ An act to authorize natural parents to legitimate their natural children (acts of 1870, p. 96) that legitimation of the children of E. C. Hart could be made only by the formal acknowledgment by the father in an act passed before a notary and two witnesses. They aver that such proof has not been made in this case and they stand upon the inadmissibility of any other species of proof to establish, their legitimacy, referring to articles 198 and 200 of the Civil Code.

On the other side it is argued that at the date of the marriage of E. C. Hart to Cornelia there was no law of Louisiana prohibiting the marriage; that the children of that marriage may .and have availed themselves of the existing laws of the State to establish, their legitimacy and their right to inherit their father’s estate. Civil Code, articles 208 and 209. It is contended in their behalf that if, at any time-prior to the marriage of. their parents, there existed an incapacity in them to occupy the status of legal heirs, that incapacity was removed by the passage by the Congress of the United States, of the act of April 9,1866, commonly known as the “ Civil Rights Bill,” and by the adoption of the fourteenth amendment to the Constitution of the United States. The plaintiffs in suit 653, object that the Civil Rights Bill is unconstitutional and that the fourteenth amendment was adopted after the marriage took place between E.C. Hart and Cornelia., the mother of the children.

The first section of the Civil Rights Act declares “that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the, United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, •except as a punishment for crime, whereof the party shall have been «duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to-sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or ■custom to the contrary notwithstanding.”

The subsequent sections provide the means for enforcing the law in the several States and Territories, and denounces certain penalties for violating its provisions, and provides for final appeal to the Supreme ■Court of the United States.

This act of Congress only declares who shall be citizens of the United States, what shall be their rights and privileges in- the several States, and provides penalties for a violation of those rights and privileges. This we think Congress had clearly the right to do, and we therefore see no reason to doubt the.constitutionality of the act.

The sixth article of the constitution of the United States declares that “ this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

If this law of Congress called the “ Civil Rights Act” is not in violation of the constitution of the United States, it is paramount to any State law, and the provisions of any State law that are inconsistent with or conflict with it are to that extent annulled.

If Cornelia Hart and her children were once slaves, they became ■free persons under the State constitution of 1864, title I, article 1:

“ Slavery and involuntary servitude, except as a punishment for ■crime, whereof the party shall' have been duly convicted, are hereby forever abolished and- prohibited throughout the State.”

The constitution of 1864 made the appellee and her children free persons. The act of Congress of April, 1866, made them citizens of tli6 United States, and relieved them of all previous disabilities they labored under on account of race, color or previous condition of slavery, by annulling previously existing laws of the State creating such disabilities, and conferred upon and vested in them all the civil rights and privileges of white persons. Cornelia Hart, therefore, in November, 1867, was vested, with the right to enter into a contract of marriage. Our law considers marriage in no other view than as a civil contract. C. C. art. 86.

Article 90 of the Code proceeds: “ As the law considers marriage in-no other view than that of a civil contract, it sanctions all those marriages where the parties at the time of making them were, first, willing-to contract; second, able to contract; third, did contract pursuant to-the forms and solemnities presented by law.”

All the conditions required by the laws of Louisiana to constitute a valid marriage we think were fulfilled in the marriage of E. C. Hart-with Cornelia, the mother of his children. It is distinctly established by the testimony of the priest who performed the marriage ceremony that the marriage was not what is termed “ a private marriage,” as-contended for by the appellants, such marriages not being permitted by the rules of the Catholic church. The objections to the validity of' this marriage because no marriage license was issued, and that it was not published or made public, we consider as without weight. Article 149 of the present State constitution declares:

,£ All rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the adoption of this constitution and not inconsistent therewith, shall continue as if it had not been adopted. All judgments and judicial sales, marriages and executed contracts, made in good faith and in accordance with existing laws in this State, rendered, made or entered into between the twenty-sixth day of January 1861, and the date when this constitution shall be adopted, are hereby-declared to be valid, except the following laws,” etc.

The marriage of these parties having been entered into within the - period embraced by this article of the constitution of 1868, and having been celebrated in accordance with existing laws of this State, seems to have been ratified and confirmed, had there existed any doubt of its validity.

On the question of the legitimation of the children the appellants rely upon the articles 198 and 200 of the Civil Code. Article 198 provides that, “ children bom out of marriage, except those who are born from an 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 by an act passed before a notary and two witnesses, or • by their contract of marriage itself.” Article 200 declares that ££ a natural father or mother shall have the power to legitimate his or her • natural children by an act passed before a notary and two witnesses,. declaring that it is the intention of the parent making the declaration to legitimate such child or children. But only those natural children. can be legitimated who are the offspring of parents who, at the time of conception, could have contracted marriage. Nor can a parent-legitimate his or her natural offspring in the manner prescribed in this article when there exists on the part of such parent legitimate ascendants or descendants.”

By the former laws of this State the children of E. C. Hart by the colored woman Cornelia could not have been legitimated for the reason that at the time of their conception, their parents could not have-entered into marriage; but in the consideration of the subject we must-bear in mind that at the time of the marriage of these parents in 1867, the incapacity in the children under the former laws of becoming-legitimated on the ground of the legal inability of their parents to-contract marriage at the time of the conception of the children, had been obliterated. No incapacity for that cause existed. The effect of the law of Congress was, to place them in the situation they would have been in under the former laws, if at the time of their conception-their parents could have contracted marriage; in other words the effect-of the law of Congress was to place them in every respect as to legal rights, in the situation of white children; and in this investigation we must throughout consider them as occupying the same position that-white children occupy.

But we understand the appellants to hold that without regard to color children in this category can only be legitimated by the marriage of their parents and the acknowledgment of the parents made by an act passed before a notary and two witnesses. In this we apprehend they are in error. Other modes of acknowledgment seem clearly to be authorized by our laws. “ The filiation of legitimate children may be proved by a transcript from the birth or baptism kept agreeably to-law or the usages of the country.” C., C. article 193.

An acknowledgment may be made by the contract of marriage. C. C. 198.

“Illegitimate children who have not been legally acknowledged may be allowed to prove their paternal descent. C. C. article 208.

The succeeding article of the Code' declares: “In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:

First — By all kinds of private writings in which the father may have acknowledged the bastard as his child, or may have called him so.

Second — 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.

Third — 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 the child was conceived.”

We consider it well settled that other modes of the acknowledgment of illegitimate children besides that by notarial act are authorized by the laws of this State. In the case of Lange et al. v. Richoux et al., 6 L. R. 570, this court said, in reference to this subject, that “the words used in article 221 [203 of Ray’s Code] are not prohibitive, and so far from declaring that a declaration before a notary shall be the only proof permitted, the Code expressly permits other modes of proof, both of paternal and maternal descent, without any restriction .as to the purpose for which it may be allowed.” The cases referred to by the counsel for appellants seem to relate to colored children under laws not now in force, and are not applicable to the case before us.

It remains to be considered whether the children of Cornelia Hart were capable of inheriting at the time of the opening of the succession of E. C. Hart in May, 1869. Article 950 of the Civil Code declares that it is “at the moment of the opening of the succession that the capacity or incapacity of the heir who presents himself to claim an intestate succession is considered.” Article 945 provides that “ all persons, even minors, lunatics, persons of insane mind, and the like, may transmit their estates ab inestato and inherit from others.” Article 199 declares that “children legitimated by a subsequent marriage have the same rights as if they were born during marriage.” Article 954 declares that “the child legitimated by a marriage posterior to its conception, only takes those successions which are opened since the marriage of the father and mother.”

The marriage of E. C. Hart with Cornelia, the mother of the children, claiming for them the succession of their father, was a valid marriage. The record abounds with evidence of the recognition and acknowledgment of these children by E. C. Hart. His solicitude to transmit his property to them is shown to have been strong. The Catholic priest testifies that prior to his marriage with Cornelia, Hart desired him to take a conveyance of all his property in trust for his children. His avowed object in marrying their mother was to legitimate them. They were baptized in the church as the children of E. C. Hart and Cornelia Hart. The act was performed with his knowledge and at his instance. He requested a friend to be present and stand as godfather to them. A registry of the baptism was made in due form. He called the children his own, caused them to be educated as such, and as his children employed physicians to attend them in sickness. Upon the cross-examniation of Cornelia, the mother, she testified that E. C. Hart, in 1857, made a will in which lie acknowledged as his own her two children then born; and provided for them and herself, and that he destroyed the will after their marriage. The evidence fully establishes that the mother was well known as living in a state of concubinage with the father, and resided in his house at th6 time the children were conceived and born. No impediment would be in the way of white children becoming legitimated, standing in every respect under the same circumstances.

We conclude upon the whole, that the children of E. C. Hart were capable of inheriting from their father at the time of his decease; that they are his legal heirs, and entitled by law to his succession.

There are various bills of exceptions in the record, taken by the appellants, to the admission of evidence offered by the counsel for the tutrix, to establish the acknowledgment of her children by Hart. The testimony we think was admissible under the pleadings, and that the exceptions were not well taken.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.