Pierre v. Fontenette

25 La. Ann. 617

• Court: Supreme Court of Louisiana
• Decided: November 15, 1873
• Docket: No. 4757
• Status: Published

Opinions

Morgan, J.

Magdeline Vincent, by what purports to be a nuncupative testament by public act, instituted Auguste Fontenette her universal legatee. Auguste and Joseph Pierre allege that they are the nephews of Magdeline Vincent. They ask to be recognized as her-heirs, and that her will be declared a nullity. The exception is, that plaintiffs are not the legitimate issue of Magdeline Vincent’s brother, through whom they claim, and can not, therefore, attack the will.

The plaintiffs and the testatrix were born slaves. Magdeline Vincent’s husband died a slave, and so did the mother of these plaintiffs. Their father purchased his freedom. Both their father and mother died before the war.

Plaintiffs claim that their father and mother having been married) according to the forms prescribed by the law in regard to persons of their class, their subsequent emancipation gives to the marriage of their parents a civil effect which it would not otherwise have had, and confers upon them the title of legitimacy, and the consequent right of inheritance. It is established that their father and mother lived; together as husband and wife, with the consent of their masters.

By the law as it was at the time when slavery existed, slaves could make no contract, except with reference to their freedom. They could not marry, except with the consent of their masters, and their marriage produced none of the civil effects which result from such a contract. They could transmit nothing by succession or otherwise, except that what they might have inherited from free persons, had they been free, might pass through them to such of their descendants as might have acquired their liberty beiore the inheritance fell to. them. C. C. 174, 176, 182.

Marriage is a civil contract; legitimation is the result of that contract; the right of inheritance is also the result of it. These are the-civil effects of the contract.

It has been held that emancipation gives to the slave his civil rights,, and that a contract of marriage, legal and valid by the consent of the master and moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which 'result from such contract among free persons. Girod v. Wells, 6 Martin, 559. This doctrine we do not deny or controvert. But we think that the marriage which is to produce these civil results must exist at the time the emancipation takes place. In this case the marriage was dissolved before emancipation. The parties’ rights, therefore, were not dormant; they were dead; and the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil •fruits which are the results of a civil marriage.

The legitimation, then, of these plaintiffs became impossible as a «result of marriage, by the death of one of their ancestors. They can not, therefore, claim to be legitimate heirs; and as it is only by reason of their possessing this status that they can attack Magdeline Vincent’s will, it follows that the exception taken against them was properly ■maintained, and the judgment must be affirmed.

Judgment affirmed.