____________________________ ____________________________ PART II: SUCCESSIONS SH 28.1 PGF | Fp------M | S* Before S died, PGF gave him Belle Terre, a tract of land, as a Christmas gift. Who inherits it? Why? SH 28.2. The same as before (SH 28.1), except that, right before his death, S sold Belle Terre to X for $100,000, due in 5 years. Can PGF get the land back? Why or why not? If not, does PGF get anything? Why or why not? If so, what does he get? Why? SH 28.3. The same as before (SH 28.1), except that S, before his death, mortgages Belle Terre to Bayou Bank. Does PGF still get it? Why or why not? If he does, does he get it back free of or subject to the mortgage? Why? SH 28.4. The same as before (SH 28.1), except that S, by testament, leaves Belle Terre to Pascal. Who gets Belle Terre-Pascal, the legatee, or PGF, the ascendant? Why? 4) Adopted children a) Statement of problems 1] Adopted child as heir 2] Adopted child as de cujus b) Answers 1] Full adoption a] Definition b] Effects 1} Adopted child as heir a} Inherits from adoptive relations (CC art. 214.B) -442- ____________________________ ____________________________ PART II: SUCCESSIONS b} Inherits from blood relations (CC art. 214.C) 2} Adopted child as de cujus a} Adoptive relations inherit from him (CC art. 214.B) b} Blood relations do not (CC art. 214.C) 2] Partial adoption a] Definition b] Effects 1} Adopted child as heir a} Inherits from adoptive relations (CC art. 214.B) b} Inherits from blood relations of both non-relinquishing and relinquishing biological parent (CC art. 214.C) 2} Adopted child as de cujus a} Adoptive relations inherit from him (CC art. 214.B) b} Blood relations of nonrelinquishing parent inherit from him (CC art. 214.C) c} Blood relations of dead or relinquishing parent do not (CC art. 214.C) c) Illustrations -443- ____________________________ ____________________________ PART II: SUCCESSIONS SH 29.1. PGM Fp----------M--------H2 adoption A* F and M are married. After M bears F a child, A, F dies. M then marries H2. H2 then adopts A. Then A dies. Who inherits A’s estate? Why? SH 29.2. The same as before, except that, this time, A lives and M and H2 die. Who succeeds to their estates? Why? SH 29.3. The same as SH 29.2, except that, this time, after M and H2 dies, PGM dies. Who succeeds to her estate? Why? 5) Illegitimates a) Introduction ________ Cynthia Samuel, Katherine S. Spaht, & Cynthia Picou, SUCCESSIONS & DONATIONS: CASES & READINGS 17-19 (Fall 2000) In 1980, the Louisiana Supreme Court in Succession of Brown, 388 So.2d 1151 (La. 1980), declared Civil Code article 919 unconstitutional under the equal protection clauses of the United States and Louisiana Constitutions because the article affording intestate succession rights to children of the deceased father discriminated among illegitimate and legitimate children. The decision was essentially consistent with the United States Supreme Court decision of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 1459 (1977), which held an Illinois statute discriminating against an illegitimate in inheriting from his father unconstitutional. Nonetheless, the Louisiana Supreme Court recognized in the Brown decision that a state statute could require exacting proof of paternity of the illegitimate, a conclusion for which the court correctly cited another United States Supreme Court decision, Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 502 (1978). Subsequently, in Succession of Clivens, 426 So.2d 585 (La. 1982), the Louisiana Supreme Court refused to apply its decision in the Brown case to the succession of a decedent who died on September 24, 1971, who had been survived by his wife and his acknowledged illegitimate daughter. His wife had been put into possession of all of -444- ____________________________ ____________________________ PART II: SUCCESSIONS his property pursuant to the Civil Code articles then in force; but the daughter, relying on Succession of Brown, claimed to be legally entitled to the decedent’s property as his sole descendant. The Supreme Court concluded that since the Brown decision relied upon the equal protection clause of the Louisiana Constitution of 1974, the Civil Code articles discriminating among illegitimate and legitimate children in inheritance from their parents, were unconstitutional as of the effective date of the equal protection clause, January 1, 1975. Furthermore, since a right to inherit intestate vests upon death of the decedent, the articles could not be applied in the successions of decedents who died before January 1, 1975, such as the succession of Clivens. The Louisiana Supreme Court in Succession of Grice, 462 So.2d 131 (La. 1985) upheld under both the United States and Louisiana Constitutions the requirement of Civil Code article 209 that filiation proceedings be brought within nineteen years of the child’s birth. The Court relied upon such United States Supreme Court decisions as Mills v. Habluetzel, 102 S.Ct. 1549 (1982) and Pickett v. Brown, 103 S.Ct. 2199 (1983). The Court found (1) that the period was sufficiently long to provide a reasonable opportunity for those interested in the child’s welfare to bring a suit on his behalf and (2) that the nineteen-year limitation was substantially related to the state’s interest in providing for the just and orderly disposition of a decedent’s property where paternal inheritance is concerned. The United States Supreme Court rendered one more decision on the constitutionality of statutes governing the procedure and time limits for proving filiation, Clark v. Jeter, 108 S.Ct. 1910 (1988). ... Shortly after the Grice decision, the United States Supreme Court decided Reed v. Campbell, 476 U.S. 852 (1986). In Reed the decedent died intestate four months before Trimble v. Gordon was decided. He was survived by one illegitimate and five legitimate children. Although Trimble invalidated Texas’ total exclusion of illegitimate children from the succession of their father, the Texas Court of Appeals held that Trimble was not retroactive in Texas and an illegitimate child whose decedent died prior to Trimble had no claim. The Texas Supreme Court refused the application of error noting no reversible error. The decedent’s estate was still under administration and no final distribution of property had been made at the time that the illegitimate child had made her formal claim to one-sixth of the estate. The United States Supreme Court reversed the decision of the Texas Court of Appeals, stating as follows: The state interest in the orderly disposition of decedent’s estates may justify the imposition of special requirements upon an illegitimate child who asserts a right to inherit from her father, and, of course, it justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted. After an estate has been finally distributed, the interest in finality may provide an additional, valid justification for barring the belated assertion of claims, though they may be meritorious and even though mistakes of law or fact may have occurred during the probate process. We find no such justification for the State’s rejection of appellant’s claim in this case. -445- ____________________________ ____________________________ PART II: SUCCESSIONS ... The interest in equal treatment protected by the Fourteenth Amendment to the Constitution – more specifically, the interest in avoiding unjustified discrimination against children born out of wedlock ... should therefore have been given controlling effect. That interest requires that appellant’s claim to a share in her father’s estate be protected by the full applicability of Trimble to her claim. Is Reed v. Campbell limited to its facts, or does it mean that the illegitimate child must be allowed to assert his claim until final distribution of the estate? See Sudwischer v. Estate of Hoffpauir, infra. What point in time in Louisiana succession procedure corresponds to final distribution at the end of a common law administration? Note that most successions in Louisiana are accepted by the heirs without administration, a procedure not available in common law states. See La. Code Civ. P. art. 3062. For an analysis of Reed v. Campbell’s effect on Louisiana law see Katherine S. Spaht, Developments in the Law, 1986-1987, 47 LA.L.REV. 471 (1987). _________ b) Definition (CC art. 180) c) Determination (CC arts. 184-190) 1] Presumptions (CC arts. 184-186) a] Child born or conceived during marriage is presumed to be legitimate child of husband b] Child born after end of marriage, but within 300 days of end of marriage, is presumed to have been conceived during marriage c] All other children illegitimate, at least at first 2] Disavowal (CC arts. 187-190) a] Remedy: action to disavow b] Parties c] Prescription 1} Husband himself -446- ____________________________ ____________________________ PART II: SUCCESSIONS 2} Heir/legatee of husband d] Proof e] Result: child illegitimate d) Modes of filiation 1] Benefitting person originally illegitimate. a] Modes that result in legitimation 1} By subsequent marriage of parents plus formal or informal acknowledgment (CC art. 198). 2} By parent's statement of intent to legitimate in notarial act (CC art. 200) b] Modes that do not result in legitimation 1} By parents' formal acknowledgment (CC art. 203) a} Modes 1/ Authentic act a/ Authentic act drawn up for this very purpose b/ Some authentic acts drawn up for other purposes SH 30.1. Pascal donates Belle Terre to Ti-Boy via authentic act as follows: "I, Pascal, do hereby donate to Ti-Boy, my beloved son, . . . ." Will this suffice as a formal acknowledgment? Why or why not? SH 30.2. Pascal signs a notarial testament, valid in form, in which he makes the following bequest: "I, Pascal, leave to Ti-Boy, my beloved son . . . ." Will this suffice as a formal -447- ____________________________ ____________________________ PART II: SUCCESSIONS acknowledgment? Why or why not? See Succession of Robinson, 654 So.2d 682 (La. 1995) (stating that the testator, by including the phrase “I leave and bequeath to my daughters BARBARA ANN LYONS, HAZEL MARIE LYONS, AND PATRICIA MARIE LYONS . . .” in his testament, had “formally acknowledged” those persons). 2/ Birth certificate or baptismal certificate b} Effect 1/ Challenge by acknowledger? (CC art. 206) 2/ Challenge by acknowledger's successors? (CC art. 207) Can the successors of the acknowledger challenge the "truth" of acknowledgment, i.e., attempt to show that acknowledged children were not, in fact, biological children of acknowledger? See the jurisprudence that follows: ________ Succession of Robinson, 654 So.2d 682 (La. 1995) JOHNSON, J. On June 14, 1971, Hardie Robinson, Jr., executed a statutory will in which he formally acknowledged Barbara Ann Lyons, Patricia Marie Lyons, and Hazel Marie Lyons as his daughters. These acknowledged women were born in 1949, 1951, and 1953 respectively. At the time the women were conceived and born, their mother, Hazel Davis Lyons, was married to and living with William Lyons, Sr. Therefore, the women were the legitimate children of William and Hazel Lyons. On May 18, 1988, Hardie Robinson, Jr., changed the manner in which his assets were to be distributed by executing a new statutory will revoking the 1971 will. The acknowledged women were not mentioned in the 1988 will. On February 5, 1992, Hardie Robinson, Jr. died. After decedent's death, Melvin Alfred Robinson petitioned to be appointed the succession administrator claiming that he was Hardie Robinson, Jr.'s only legitimate child and sole heir. Melvin Robinson was confirmed as administrator. Thereafter, the acknowledged women intervened in the succession seeking, among other things, to be recognized by the court as the formally acknowledged children of decedent based on the 1971 will and, as such, to participate in decedent's succession as forced heirs. The trial court found that the 1971 will executed by decedent was an acknowledgment by Hardie Robinson, Jr. of his daughters. -448- ____________________________ ____________________________ PART II: SUCCESSIONS In response, pursuant to La. R.S. 9:396, Melvin Robinson filed a motion to compel genetic testing through performing blood tests on the acknowledged women and their mother "to determine what relationship, if any, the purported heirs have to decedent." The trial court denied the motion stating that "[g]enetic testing has no relevance to the issue of whether or not [the women] have been acknowledged." The court of appeal set aside the trial court's judgment and remanded the matter for a hearing "to determine whether DNA testing ... should be ordered [reasoning that decedent] could not validly acknowledge [the women] if they were not his children." The court of appeal found that DNA testing was relevant and that La. R.S. 9:396 would authorize the blood testing. On the intervenors' application, we granted certiorari to determine the correctness of that ruling. The issue presented for our review is whether, in a succession proceeding, a court can compel formally acknowledged illegitimate persons and their mother to submit to blood tests. In resolving this issue, we must first determine whether, under the circumstances, authority exists for ordering the requested blood tests. If so, whether competing constitutional interests weigh in favor of permitting such testing. Finally, if testing is permissible in this case, whether procedural safeguards are necessary to protect the constitutional rights implicated. La. R.S. 9:396 A, a statute directed at establishing paternity, provides: Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedure. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require. The statute authorizes blood testing of the mother and child in cases where paternity is relevant. Moreover, the general rules of discovery may authorize blood tests where such tests are likely to produce relevant evidence. Sudwischer v. Estate of Hoffpauir, 589 So.2d 474 (La.1991); La.Code Civ.P. art. 1422. Thus, our inquiry is narrowed. We must determine whether Hardie Robinson, Jr.'s biological relationship to the intervenors is relevant to the legal effect to be given the formal acknowledgment in this succession proceeding. That is, whether the validity of the formal acknowledgment depends upon whether decedent was the intervenor's biological father. La. Civ. Code art. 178 states that children are either legitimate or illegitimate. Legitimate children are defined by La. Civ. Code art. 179 as those who are either born or conceived during marriage or who have been legitimated in the manner provided by law. La. Civ. Code art. 180 states that illegitimate children are those who are -449- ____________________________ ____________________________ PART II: SUCCESSIONS conceived and born out of marriage. Under La. Civ. Code art. 203, an illegitimate child is acknowledged by a declaration executed before a notary public, in the presence of two witnesses, by the "mother" or "father." Although art. 203 does not expressly preclude executing an acknowledgment where no biological relationship exists, this conclusion is self-evident and definitional of an acknowledgment. An acknowledgment is an avowal emanating from the "mother" or "father" to establish maternal or paternal filiation. 1 M. Planiol, Treatise on the Civil Law § 1476 (La.St.L.Inst. transl. 1959). The word "filiation" describes the fact of biological parentage. La. Civ. Code arts. 193-197. Thus, through the acknowledgment, the "mother" or "father" provides proof of maternal or paternal filiation, that is, biological parentage. Absent a biological relationship, the avowal is null. "A fact cannot be avowed when it has never existed." 1 Planiol, supra, § 1490(2). If the acknowledgment is null, it produces no effects. Our conclusion, that the validity of an acknowledgment may depend on the existence of a biological relationship is in line with other decisions addressing this issue. Specifically, in McKinley v. McKinley, 631 So.2d 45 (La. App. 2nd Cir.1994), Paul McKinley married Wendy McKinley six weeks after she gave birth to Justin McKinley. Paul and Wendy McKinley knew that Paul was not Justin's biological father because Justin was conceived before they began dating. Nonetheless, after their marriage, Paul and Wendy executed an authentic act avowing that Paul was Justin's father. Sometime thereafter, Paul and Wendy divorced. Wendy sought to terminate Paul's parental rights asserting that Paul was not the biological nor legal father. Although custody of Justin was awarded to Paul based on the child's best interest test, the Second Circuit found that "[o]nly a father may formally acknowledge an illegitimate child...." Id. at 48. The court concluded that the acknowledgment was without legal effect. Similarly, courts in France have permitted legal attacks against false formal acknowledgments. As discussed in 1 Planiol, supra, § 1490(2), a very young man, just out of college, made the acquaintance of a woman who had a child then four years old. Through weakness he acknowledged that he was the father of the child, born several years before he had met its mother. The Lyons Court of Appeals held that his suit to attack this acknowledgment was [permissible]. (citing Lyons, March 13, 1856, D. 56. 2. 232, S. 56 2. 586; Seine, June 28, 1932, Gazette du Palais, Oct. 10). Our inquiry regarding the relevance of a biological relationship is not ended merely by the possibility that the formal acknowledgment is false. The form of the acknowledgment and the admissibility of evidence to attack the acknowledgment must also be considered. A formal acknowledgment executed before a notary and two witnesses is an authentic act. La. Civ. Code art. 1833. "An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title." La. Civ. Code art. 1835. Consequently, parole evidence is rarely admissible to contradict or destroy the authentic act. Casenotes, Civil Law: Parole Evidence to Vary an Authentic Act, 27 Loy.L.Rev. 719 (1970-71). However, where it is alleged that the act is made in contravention to the law, evidence relevant to this fact -450- ____________________________ ____________________________ PART II: SUCCESSIONS is admissible to prove what legal effect, if any, the act will be given. Succession of Fletcher, 11 La. Ann. 59 (La.1856). The information sought through blood tests would produce evidence relevant to paternal filiation. In facilitating a determination of paternity, blood tests are highly reliable and unequaled in evidentiary value. In re J.M., 590 So.2d 565 (La.1991). In fact, this court has previously recognized the great evidentiary value provided by a blood test exclusion of paternity. Id.; Sudwischer; Pace. . . . Here, Hardie Robinson, Jr. formally acknowledged the intervenors in the 1971 will executed before a notary public and two witnesses. The acknowledgment complies with the formal requisites contained in art. 203 and is an authentic act. If a biological relationship did not exist between decedent and the intervenors, then the acknowledgment was made in contravention of the law, particularly, the substantive requirements of art. 203. Accordingly, evidence of paternity is germane to the issue of the validity of the acknowledgment. The right to challenge the acknowledgment is granted in La. Civ. Code art. 207 which provides that "[e]very claim, set up by illegitimate children, may be contested by those who have any interest therein." As administrator of the succession and a forced heir, Melvin Robinson has an interest in defeating the intervenors claim to participate as forced heirs in the decedent's succession. Although the information sought is relevant, its production involves a balancing of competing constitutional interests. Specifically, Melvin Robinson's interest in discovering data obtainable through blood tests and the state's interest in forcing the acknowledged women and their mother to submit to a blood test versus the acknowledged women and their mother's privacy interests. . . . If Melvin Robinson is decedent's sole forced heir, then he is entitled to inherit one-fourth of the decedent's estate. La. Civ. Code art. 1493. If only one acknowledged daughter is a forced heir, then Melvin Robinson's inheritance would remain unchanged. Id. However, if two or more of the acknowledged women are forced heirs, then Melvin Robinson will only inherit his share of one-half of the decedent's estate. Id. This would greatly reduce Melvin Robinson's legitime. Obviously, Melvin Robinson has a financial interest in determining whether the decedent was the acknowledged women's biological father. Additionally, forced heirship furthers important state interests.... [T]he state has an interest in preventing parents from circumventing a child's constitutional right as a forced heir. By acknowledging persons with whom no biological relationship exists, a parent could greatly reduce a forced heir's legitime and undermine forced heirship laws. Consequently, the state has a compelling interest in ordering the intervenors to submit to blood tests to determine the validity of the acknowledgment. On the other hand, the acknowledged women and their mother have constitutional privacy and due process rights which protect includes the right to avoid disclosure of personal matters and the interest in independently making certain kinds of important decisions.... [W]e find that the invasion of privacy exists, but it is limited. To avoid the invasion, the intervenors have the option of acquiescing the lack of a biological relationship with the decedent. See Sudwischer, 589 So.2d at 476. -451- ____________________________ ____________________________ PART II: SUCCESSIONS In balancing the state's compelling interest in protecting the constitutionally guaranteed right of forced heirship against the limited invasion of privacy, we find that the latter must fail. ________ By what means can the successors of the acknowledger mount this challenge? See La. R.S. 9:396. 2} By paternity action (CC art. 209) a} Definition A paternity action is an action to establish that one person is, in fact, biological child of another. -452- ____________________________ ____________________________ PART II: SUCCESSIONS b} Parties: 1/ Child himself Can any and every child bring this action or just some? CC art. 209.A. See SH 31. Ti-Boy was born during the marriage of Pascal & Julie. Though, as a youngster, he had assumed that Pascal was, in fact, his father, as a teenager he began to have his doubts. Ti-Boy noticed that he looked much less like Pascal than like Uncle Bill, a family friend from Arkansas. And so, when he turned 18, he brought a paternity suit against Uncle Bill under CC art. 209. Is that permissible? Why or why not? 2/ Representative of child, if child is minor c} Prescription: 1/ Exposition: earlier of (i) one year after death of supposed parent or (ii) child's 19th birthday 2/ Critique Is this time limitation constitutional? Why or why not? See Succession of Grice (1985) & Reed v. Campbell (USSCt 1986), explicated and critiqued in Samuel, Spaht, & Picou, reproduced above at pp. 436-38. d} Burden of proof 1/ Preponderance, if putative father is still alive (209.A) 2/ Clear & convincing, if he's dead (209.B) e} Proof 1/ What evidence is relevant? (CC art. 187) -453- ____________________________ ____________________________ PART II: SUCCESSIONS 2/ How does plaintiff get scientific evidence? (La. R.S. 9:396 et seq.) a/ From mother and putative father (396.A) b/ At least sometimes, from others, e.g., siblings co-heirs Does § 396.A itself allow for compulsion of evidence from coheirs? If not, then can co-heirs be compelled? Why or why not? See the jurisprudence that follows: ________ Sudwischer v. Estate of Hoffpauir, 589 So.2d 474 (La. 1991) (on rehearing) WATSON, J. This case concerns the constitutional balance between plaintiff's interest in proving filiation and an heir's right to refuse a blood sample. Plaintiff, Alana Benoit Sudwischer, sued to establish filiation to Paul C. Hoffpauir, alleged to be her deceased natural father. LSA-C.C. art. 209(B). Hoffpauir died intestate, survived by his widow; an adopted son, Paul C. Hoffpauir, Jr.; and a legitimate daughter, Rosemary Hoffpauir Schuh. Alana seeks a compelled blood test of Rosemary to aid in proving her filiation. The trial court denied the motion to compel because LSA-R.S. 9:396 does not authorize blood tests of siblings. . . . LSA-R.S. 9:396 postulates the existence of an alleged living father and does not statutorily authorize the testing sought in this case. In context, the statute is directed at establishing paternity for purposes of child support. There is no indication that the statutory language expresses a deliberate policy of limitation. At the time of Alana's birth, her mother was married to Davis Benoit, but Benoit never lived with them in a family unit. Benoit was in prison, both when Alana was born (1951) and during the preceding year (1950). Although Benoit's name is on Alana's birth certificate, they have never had any association. Alana's legal status as Benoit's child does not preclude her from proving filiation to Hoffpauir. Griffin v. Succession of Branch, 479 So.2d 324 (La. 1985). Alana's statutory burden of proof is "clear and convincing evidence". . . . Although there is deposition testimony that Hoffpauir recognized Alana as his daughter, scientific testing could corroborate this evidence. . . . In deposition, Dr. J. Craig Cohen, an expert in DNA testing, testified that it is possible to identify any relationship between Alana and Hoffpauir. . . . . . . This DNA testing [in this case] would not achieve that [perfect] accuracy. However, Rosemary's testing would produce relevant evidence, which could be -454- ____________________________ ____________________________ PART II: SUCCESSIONS considered by the trier of fact with other evidence in evaluating Alana's claim. LSAC.C.P. art. 1422 provides: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, . . .” Rosemary Hoffpauir Schuh was not originally a party to this lawsuit, but she has been served with a rule to show cause why her blood should not be tested. She is a forced heir to her father's estate, which remains under administration, and she accepted her father's succession unconditionally after this suit was filed. . . . The attorney for the estate has filed briefs on her behalf, stating that Rosemary strongly opposes a blood test. There is no allegation that Rosemary's representation by the estate's executors and attorney is inadequate. The requirements of notice and an opportunity to be heard have been met. The state's interest in the orderly disposition of estates may bar assertion of paternity claims after distribution of an estate. Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L.Ed. 2d 503 (1978). However, Hoffpauir's estate is under administration and Alana's claim is timely. Reed v. Campbell, 476 U.S. 852, 106 S. Ct. 2234, 90 L.Ed. 2d 858 (1986). The inheritance rights of legitimate and illegitimate children are entitled to equal protection of the law. Succession of Brown, 388 So.2d 1151 (La. 1980). Alana has a constitutional right to prove filiation to a deceased father. Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed. 2d 31 (1977). That right must be weighed against the invasion of Rosemary's privacy presented by a compelled blood test. LSA-Const. art. I, § 3. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987). To compel a blood test of Rosemary, Alana's interest in identifying her father must outweigh Rosemary's expectation of privacy. Although she bears the Benoit name, Alana has never enjoyed a father/daughter relationship with Benoit. She has an overriding emotional and financial interest in knowing her father's identity. Rosemary has a financial interest in opposing Alana's claim but has asserted no physical or religious obstacles to a blood test. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.Ed. 2d 908 (1966). The invasion of Rosemary's privacy is minimal. Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L.Ed. 2d 448 (1957). Rosemary has the alternative of conceding a relationship to Alana. Under these circumstances, the trial court erred in denying Alana's motion to compel the DNA testing of Rosemary's blood. ________ 2] Benefitting parent of person originally illegitimate a] Means enumerated (CC art. 891) 1} Legitimation by notarial act (CC art. 200) 2} Formal acknowledgement (CC art. 203) -455- ____________________________ ____________________________ PART II: SUCCESSIONS 3} Paternity judgment in action by child (209) 4} Informal acknowledgment, i.e., "openly and notoriously treat[ing] child as his own" b] Means excluded c] Means compared (CC art. 891) Are all of these means effective to filiate the illegitimate child to the parent so that the former can inherit from the latter? Why or why not? SH 32.1. Bill sires a child, Bubba, out of wedlock, by Monica. Bill never marries her; never executes a notarial act of legitimation; never executes a formal acknowledgement. But he does introduce Bubba to his friends as "my son." Bubba dies. Can Bill inherit from him? Why or why not? -456- ____________________________ ____________________________ PART II: SUCCESSIONS SH 32.2. The same as SH 32.1, except that Bill dies. Bubba is then 25 years old. Can Bubba inherit from him? Why or why not? 3] Benefitting other relative of person originally illegitimate a] Means enumerated 1} Step 1 a} Permitted: 1/ Legitimation by notarial act (CC art. 200) 2/ Formal acknowledgment (CC art. 203) 3/ Paternity judgment in action by child (CC art. 209) b} Not permitted 1/ Informal acknowledgment 2/ Paternity action 2} Step 2 1} Legitimate filiation 2} Same as Step 1 b] Means compared: same 6) Spousal rights a) Definition: who is a spouse? 1] True spouse 2] Putative spouse -457- ____________________________ ____________________________ PART II: SUCCESSIONS a] Definition b] Varieties of putative spouses 1} Putative spouse in absolutely null marriage (CC art. 96) a} Definition of absolutely null marriage (CC art. 94) 1/ Prior marriage (CC art. 88) 2/ Same sex (CC art. 89) 3/ Nearness of relation: one can't marry an ascendant, descendant, or collateral w/in 4th degree (CC art. 90) b} Prerequisites for putative status 1/ General rule (CC art. 96, ¶ 1 & cmt. (d)) 2/ Exceptions: a/ If impediment was prior marriage, putative status continues even after loss of GF until declaration of nullity or remarriage (CC art. 96, ¶ 2) b/ Putative status completely foreclosed, notwithstanding good faith, if impediment is same sex (CC art. 96, ¶ 4) 2} Putative status in relatively null marriage a} Definition of relatively null -458- ____________________________ ____________________________ PART II: SUCCESSIONS marriage (CC arts. 97 & 93) 1/ Duress (CC art. 93) 2/ Incapacity of discernment (CC art. 93), e.g., insanity, mental retardation, intoxication, naivèté (comments (c) & (d)) b} Prerequisites for & duration of putative status: continues until marriage is declared null (CC art. 97) c] Effects: “civil effects” of marriage (CC arts. 96 & 97) d] Illustration SH 33. Olide married Clodice. Together, they had one child, Cherie. The Olide sued Clodice for divorce. Though he got a preliminary default against her, the court, unbeknownst to the couple, ever entered a final default judgment. Olide, believing the divorce was final, later married Desirée, who likewise believed Olide was divorced. Olide and Desirée lived together for 21 years, during which time Desirée, using community funds, bought a tract of land. Then Olide died. How should the tract of land, including Olide’s interest in it, be distributed? Why? See the jurisprudence that follows: ________ Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956) HAWTHORNE, J. Plaintiff-appellee, Clementine Prince, instituted this proceeding seeking to be declared the owner of a lot of ground purchased by her during the existence of her marriage with James Brough, deceased. The defendants are Victoria H. Albert, surviving legal wife of James Brough, and Irita B. Hopson, sole issue of the marriage between Brough and Victoria H. Albert and the only living child of Brough. The defendants claim the ownership of, or an interest in, this property. The facts giving rise to this litigation are as follows: James Brough, the deceased, married Victoria H. Albert on December 31, 1907, and of this marriage one -459- ____________________________ ____________________________ PART II: SUCCESSIONS child was born, Irita Elizabeth Brough, now wife of Willie Ray Hopson. In January, 1919, James Brough filed a suit against his wife for an absolute divorce on the ground of seven years separation. A preliminary default was entered in that case, but final judgment was never rendered. Clementine Prince, relying upon the statement of James Brough that he was divorced from his first wife, was by a minister of the gospel married to Brough on May 19, 1919, after a marriage license to perform said ceremony had been duly obtained. After this marriage Clementine Prince and James Brough lived together as man and wife until his death on May 18, 1940, for a period of approximately 21 years, and in fact Clementine Prince did not know that Brough had not been divorced until she attempted to borrow money on the property here involved in 1955, some 15 years after his death. Moreover, his first wife, Victoria Albert, believed that she and the deceased were divorced, and she had contracted a marriage with Elijah Albert. The property here involved, which is a lot of ground in the City of New Orleans, was sold according to the deed by Elizabeth McCluskey to Clementine Brough on March 4, 1939, during the time she and James Brough were living together as husband and wife. Although this deed names the vendee as Clementine Prince, wife of James Brough, it contains no recitation of paraphernality. The consideration named is $215 in cash. . . . Under these circumstances there is only one conclusion that can be reached, and that is that both Clementine Prince and James Brough were in good faith at the time their marriage was contracted, although this marriage was a nullity. Since the marriage of Clementine Prince and James Brough was contracted in good faith, under Article 117 of the Civil Code this marriage produced its civil effects, and the existence of a community of acquest and gains between them is such a civil effect. It is well settled in this state that property purchased in the name of either spouse during the existence of the community of acquest and gains is presumed to be community property. Arts. 2334, 2402, La. C.C.; Salassi v. Salassi, 220 La. 785, 57 So.2d 684. ... Since Clementine Prince and James Brough both contracted their null marriage in good faith, the question then arises: How should we divide this property acquired during the coexistence of both the first and the second marriage, or during the existence of the putative community? The claimants are Victoria H. Albert, the legal wife; Irita B. Hopson, legitimate child of the first marriage, and Clementine Prince, putative wife of James Brough. In Waterhouse v. Star Land Co., Ltd., 139 La. 177, 71 So. 358, 360, this court said: "It is a fixed rule of property in the state of Louisiana that property which has been earned during the existence of a putative marriage belongs one half to the legal wife and the other half to the reputed wife. The children of the respective marriages have therefore no interest in it * * *" The famous case of Patton v. Cities of Philadelphia and New Orleans, supra, is the source from which this rule of property springs. In that case Abraham Morehouse -460- ____________________________ ____________________________ PART II: SUCCESSIONS was married to Abigail Young, by whom he had children and whom he abandoned in the State of New York. He came to Louisiana and here in bad faith as clearly shown by the facts contracted a second marriage with Eleonore Hook, untruthfully representing himself as a widower. Children were also born of this putative marriage. In disposing of the property left by Morehouse at his death, this court applied the Spanish law, and concluded that the property should go one-half to the legal wife and one-half to the putative wife, the forced heirs getting nothing, on the theory that Morehouse had wronged the second wife by creating a bigamous marriage and for his wrong the second wife had a claim in damages against the husband equal to his share in the community. The court applied the Spanish law because Morehouse's death in 1813 gave rise to the cause of action before the incorporation in our Civil Code of Arts. 117 and 118 (Art. 119 and 120 of the Code of 1825). . . . The holding in the Patton case has been followed ever since by this court, even though, as pointed out in Hubbell v. Inkstein, supra, decided in 1852, the decision in the Patton case was under the former laws of the country (Spanish) which had been repealed at the time of the decision of this court in the Hubbell case. The court in the Hubbell case deduced that the reasoning of the Patton case had equal force under both the Spanish law and the system of law existing at the time of that decision. We note, however, that in the Hubbell case the court did not mention Arts. 119 and 120 of the Code of 1825 (now Arts. 117 and 118). Be that as it may, in none of the cases cited above which rely on the Patton case and apply the rule of law there announced, was the good faith of both parties to the second marriage considered or discussed in connection with Art. 117 of the Civil Code. Moreover, in these cases the good faith of both parties to the second marriage was not a factor. Again, where the property acquired during the putative marriage was divided between the two wives, the facts in most of those cases clearly show that the husband in contracting a second marriage was in bad faith. Such is not a fact in the case which we now have under consideration, as both parties to the second marriage here were in good faith, and the rule of law announced in the Patton case cannot be reconciled with the express provisions of Art. 117 of our Civil Code in regard to a situation where both parties are in good faith. To follow the Patton rule in the instant case and to give to the putative wife the husband's one-half of the property acquired during the existence of the putative community would be to deny to him and his heirs the civil effects of the second marriage, in the teeth of the provisions of Art. 117. James Brough being in good faith in his second marriage, this marriage also produced its civil effects as to him, and accordingly he became the owner of an undivided one-half of all property acquired during the existence of the putative community, for under the provisions of Art. 2402 of the Code community property consists, among other things, of the estate which the parties to the marriage may acquire during such marriage by purchase, even though the purchase be only in the name of one of the spouses and not of both. Thus, although the property in the instant case was purchased in the name of the second wife, it fell into the putative community. Accordingly when James Brough died one-half of this property belonged to his succession. He was survived by one child, Irita B. Hopson, who therefore inherited his -461- ____________________________ ____________________________ PART II: SUCCESSIONS share of the community property under Art. 915 of the Civil Code. ... We have disposed of James Brough's one-half of the community property acquired during the putative marriage, but the serious question remains: What division shall we make of the remaining one-half of this property? As we have heretofore pointed out, James Brough's second wife, Clementine Prince, was also in good faith when the marriage was contracted and remained in good faith until after his death. Under the provisions of Art. 117 she would therefore be entitled to one-half of all property acquired during the existence of the putative community although the marriage was a nullity. However, during this entire time the legal community was also in existence, and it likewise was not dissolved until James Brough's death, and during the coexistence of both these communities the property was acquired. Under Art. 2406 of the Civil Code the effects which compose the community of acquets and gains are divided into two equal portions between the husband and the wife or between their heirs at the dissolution of the marriage. Consequently under the provisions of this article Victoria Albert, the legal wife, is also entitled to the remaining one-half of such property. The provisions of our law which give to each of these wives one-half of the property are of equal dignity and rank. However, it is impossible to give to each wife under these laws one-half of the entire property, as there remains to be divided between them only one-half of the property because James Brough's one-half is inherited by his daughter. The question then presented is: How should the remaining one-half of the property be divided between the legal wife and the putative wife? . . . Under the views of Aubry and Rau; Baudry-Lacantinerie; Colin and Capitant; and Ripert and Boulanger, where both parties to a putative marriage are in good faith the husband is entitled to his share of all property acquired during the existence of both the legal and the putative marriage under Art. 201 of the French Code, and accordingly he or his heirs take as civil effects one-half of the entire property acquired from the date of the legal marriage to its dissolution. See Colin et Capitant, 1 Traité de droit civil (1953) 375, no. 623; Ripert et Boulanger, 1 Traité élémentaire de droit civil de Planiol (5e ed. 1950) 384, no. 1050; Baudry-Lacantinerie, 3 Traité de droit civil (3e ed. 1908) 505, nos. 1912-1924; Aubry et Rau, 7 Cours de droit civil francais (5e ed. 1913) 68-71. These commentators then point out that, as to the remaining half, the putative wife can have no claim to any portion of the property acquired during the legal marriage, for this would be outside her community, whereas the legal wife certainly is entitled to one-half of all property acquired during the legal marriage. As to the property acquired during the putative marriage, the legal wife under the provisions of the law is entitled to one-half thereof since her marriage was in existence at that time and the community was not dissolved until the husband's death. However, under the provisions of Art. 202 of the French Code the putative wife because of her good faith is also entitled to this same one-half of the property. The commentators then say that since these claims are equal in nature on the same object, the only division that can be effected is to split the property acquired during the putative community and give each wife one-half. See Aubry et Rau, 7 Cours de droit civil français (5e ed. 1913) 75, 76, -462- ____________________________ ____________________________ PART II: SUCCESSIONS n. 24; Baudry-Lacantinerie, 3 Traité de droit civil (3e ed. 1908) 516-518, nos. 19301932. See Comment, The Civil Effects of a Putative Marriage, 1 Loy.L.Rev. 54 (1941). Under the view which these commentators deem to be the most equitable, in the instant case the legal wife, Victoria H. Albert, and the putative wife, Clementine Prince, would each be entitled to an undivided one-fourth interest in the property in question. The French commentators also allow the children to inherit community property from a father who contracted a second marriage in bad faith, which seems to us to be correct under Art. 118 of our Code. See Colin et Capitant, 1 Traité de droit civil (1953) 376, no. 624; Comment, The Civil Effects of a Putative Marriage, 1 Loy.L.Rev. 54, 67 (1941). Of course we are not here called upon to, nor do we think we should, go that far because of our decision in Patton v. Philadelphia and the cases which followed the ruling announced there -- holding, in effect, as we have pointed out above, that children do not inherit community property acquired by their father during a second marriage contracted in bad faith. However, we see no reason why we should not accept such a solution where both parties to the marriage are shown to be in good faith, and by adopting this solution we certainly are following the provisions of Art. 117 by allowing to the husband who is in good faith the civil effects of his second marriage, and we are also following the provisions of the article as to the putative wife's share as far as we can possibly do so by recognizing her to be entitled to the civil effects of her marriage, which she also contracted in good faith. . . . ________ b) Rights 1] Normal case: monogamy (only one spouse, either genuine or putative) a] Heir to full ownership 1} Separate property 2} Community property a} Legislation (CC art. 889). b} Jurisprudence ________ -463- ____________________________ ____________________________ PART II: SUCCESSIONS Paline v. Heroman, 211 La. 64, 29 So.2d 473 (1946) KENNON, Justice. The judgment appealed from rests on an interpretation of Article 1022 of the Revised Civil Code. Joseph Paline died intestate, leaving his widow and their two sons, Paul and Emile, and certain community property, title to part of which is at issue in the present suit. By authentic act, both sons renounced the succession and their mother was placed in possession of the entire estate--one half in her own right and one half by virtue of the childrens' renunciation. Upon the widow's death, she bequeathed to her two children (the ones who had renounced in her favor) the real property owned by the community. Emile Paline, plaintiff in this suit, through a partition with his brother, Paul Paline, acquired title to a 2.83 acre tract out of this property and on December 5, 1945, he entered into an agreement with Fred I. Heroman, Jr., the defendant to sell him this tract of land. This suit was filed for specific performance when Heroman refused to accept plaintiff's title to the property as merchantable. Mrs. Virginia Paline Sherrill, one of the five children of the plaintiff's brother, Paul Paline, intervened, in the suit, claiming as heir of Joseph Paline, her grandfather, an undivided one tenth interest in the property. The lower court rendered judgment in favor of defendant, Heroman, rejecting plaintiff's demand for specific performance and recognizing intervener, Mrs. Virginia Paline Sherrill, as owner of an undivided one tenth interest in the property. Emile Paline appealed. The question presented is whether the husband's portion of the community property, after the renunciation's of his children, passed to the surviving spouse in community or to the five children of the renouncing heir, Paul Paline. (Mrs. Sherrill, intervener, is one of these children.) Plaintiff argues that when the two heirs of Joseph Paline renounced his succession, which consisted entirely of community property, title to his undivided one half interest in the property vested in his surviving widow in community under the provisions of Articles 915 and 1022 of the Revised Civil Code. Article 915 provides: 'When either husband or wife shall die, leaving neither a father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership. In the event the deceased leaves descendants, his or her share in the community estate shall be inherited by such descendants in the manner provided by law. Should the deceased leave no descendants, but a father and mother, or either, then the share of the deceased in the community estate shall be divided in two equal portions, one of which shall go to the father and mother or the survivor of them, and the other portion shall go to the surviving spouse, who, together with father or mother inheriting in the absence of descendants, as provided above, shall inherit as a legal heir by operation of law, and without the necessity of compliance with the forms of law provided in this chapter for the placing of the regular heirs in possession of the succession to which they are called.' -464- ____________________________ ____________________________ PART II: SUCCESSIONS Under Article 915 quoted above, the sons inherited (subject to their acceptance) all of their father's portion of the community. Section 2 of Chapter 6 of the Revised Civil Code deals with the manner in which successions are accepted, and renounced. The articles of this chapter dealing with the rights of creditors and heirs who benefit by the renunciation are numbers 1021, to 1928, inclusive. Article 1022 reads: 'The portion of the heir renouncing the succession, goes to his coheirs of the same degree; if he has no coheirs of the same degree, it goes to those in the next degree. This right of accretion only takes place in legal or intestate successions. In testamentary successions, it is only exercised in relation to legacies, and in certain cases.' Mrs. Sherrill, the intervener, contends that since Paul Paline and Emile Paline, who were all of the coheirs of the same degree, renounced, the succession under the above-quoted article 'goes to those in the next degree' and, therefore, she and her sisters and brothers, five in all, being all the grandchildren of the deceased, are 'those in the next degree' and inherit in their own right. The contention is based upon the theory that the phrase in Article 1022, R.C.C., 'next degree' refers to persons who are related by blood in the next degree to the renouncing heir. At the time the Civil Code was adopted, only those who were kinsmen of the deceased were called to his succession and, hence, the word 'degree' was generally conceded to be limited to people having blood relationship to the decedent. Article 915 was later amended to include the wife and as amended again in 1938 it provided that she '* * * shall inherit as a legal heir by operation of law, and without the necessity of compliance with the forms of law provided in this chapter for the placing of irregular heirs in possession of the successions' to which they are called.' Thus, a study of Article 915 (as amended), the other articles in the chapter relating to renunciation of successions, and a careful analysis of Article 1022 leads to the conclusion that the expression in Article 1022 'those (coheirs) in the next degree' refers to the heirs of the de cujus who are next in rank or right to inherit in the succession which the heir was renounced, By this amendment, the wife was virtually--for succession purposes as set forth in Article 888--placed in the same category as a blood relation to the deceased. To hold that the effect of the 1938 amendment is to include the wife in the definition of 'those in the next degree' in Article 1022, is not inconsistent with the dictionary given meaning of the word 'degree'. The first and second definitions of the word 'degree' in Webster's New International Dictionary, 2d Ed., are: '1. a step, stair, or rung; now a step-like member of a series; a tier, bank, rank or the like. '2. A step or station in any series; a point or stage.' Also, '4. A remove in the line of descent, determination in the proximity of blood; one remove in the chain of relationship; as a relation in the third degree.' In the Winston Dictionary, Encyclopedia Edition, the first definition of the word 'degree' is a step or grade in a series. It is in full conformity with its dictionary meaning to hold that 'next degree' in Article 1022 can mean those (coheirs) who are next in rank or order among those entitled to inherit under the provisions of Article 915. The renunciation made by Paul Paline and Emile Paline contains the following -465- ____________________________ ____________________________ PART II: SUCCESSIONS language: 'They now make public, express and formal renunciation of and to the succession of the deceased, Joseph Paline, to be used and to serve and avail as the occasion shall require'. Immediately following this renunciation in the admitted statement of facts, it is set forth that Mrs. Denise Granier Paline was recognized in the succession proceedings as surviving spouse and sole heir at law of all the property belonging to the community of acquets and gains. Thus, it seems that it was the clear intention of the renouncing children to vest full, complete, and irrevocable title in their mother to all property of whatever nature left by their father, and to do so to the exclusion of their own children. The interpretation that the beneficiary of a renunciation under Article 1022 is, when all the coheirs entitled to the succession in the first instance renounce, the heir next called to the succession by operation of law rather than the kinsman next in kin is indicated by a sentence under the discussion of 'Seizin of Heirs', page 199 of the Alfred Bonomo Edition of Saunder's Lectures on the Civil Code: '* * * Now if the heir who is called to accept, renounces then the seizin goes to the heir in next order of right.' This interpretation of Article 1022 gives meaning to the provisions of the preceding Article (1021) which sets forth the rights of creditors of a renouncing heir. The third paragraph of that article reads: 'If, therefore, after the payment of the creditors, any balance remain, it belongs to his coheirs who may have accepted it, or if heir who has renounced be the only one of his degree, it goes to the heirs who come after him.' The article does not mention 'those in the next degree of blood relationship'. The expression 'the heirs who come after him' is consistent with the interpretation of Article 1022 that 'those in the next degree' refers to 'those in the next category or rank' (as heirs of the decedent). Article 946 declares that if an heir rejects (renounces) the succession, he is considered as never having received it, and it follows that the rights of other heirs become the same as if the renouncing heir had never been an heir, in fact, as if he had never existed. Nor can the grandchildren inherit by representation the portion renounced by the living sons, as there can be no representation of a living person. Article 899, R.C.C. ... Reading and considering together the provisions of Article 915 which deals with the rights of heirs to inheritance of community property and sets forth as recipients, first descendants and secondly, ascendents and surviving spouse as coheirs, and Article 1022, which states that the portion of renouncing heirs goes 'to those in the next degree', we conclude that since all the children of the deceased spouse renounced the succession, the surviving widow (in the absence of parents) became recipient of the accretion as she is the heir in the next rank or degree, under the provisions of Article 915, R.C.C. ________ NOTES -466- ____________________________ ____________________________ PART II: SUCCESSIONS 1. When the Paline decision (to which two justices vigorously dissented) was announced, it was immediately condemned by nearly all (if not all) scholars of Louisiana successions law. Had I been around then, I, too, would have joined in the denunciation. Seldom in the annals of Louisiana jurisprudence have the courts played as fast and loose with a legislative text or ignored legal history and legal science to such an extent as the majority did in that case. If ever there was a supreme court decision that was wrong, this was it. 2. Since Paline was (mis)decided, much of the legislation that the majority therein “interpreted” – most notably, CC arts. 915, 946, & 1022 – has been revised. In place of those three articles we now have, respectively, article 889 (rev. 1982), 954 (rev. 1999), & 964 (rev. 1999). Have these new articles in effect overruled Paline? Why or why not? ________ b] Heir to usufruct 1} In general 2} Definition (CC arts. 535-539, 551). 3} Type of usufruct a} Classification: legal (CC art. 890 comment (b)) b} Significance 1/ Duration: until death or remarriage (CC arts. 607 & 890) 2/ Security a/ General rule: (CC art. 573) no b/ Exception: a "forced heir" who is not the child of the surviving spouse (i.e., stepchild) can demand security (CC art. 1514) -467- ____________________________ ____________________________ PART II: SUCCESSIONS 3/ Tax 4} Property affected a} Only former community property . . . b} of which the deceased did not dispose by testament (CC art. 890) -468-