
    No. 11,794.
    W. L. McNeely, Tutrix, vs. J. H. McNeely, Executor, et al.
    The husband is presumed to be the father of the child born of the wife during the marriage, and as separation from bed and board does not dissolve the marriage, it follows that the child, to which the mother not divorced gives birth after the separation, is within this presumption of paternity the law fixes on the husband; as one of the leading commentators puts it: “ Comme la separation du corps ne dissout pas Ie marriage, il suit de la, que la presumption de paternitie etablie par Particle 312 subsiste encore.” Civil Code, Arts. 184-155, 159-136; Code Napoleon, Arts. 312, 306, 310; i Duranton, p. 3C6, par. 632: Le jugmentdeseparation.de corps laisse qui subsister le marriage ne peut faire cessa Ie presumption de paternitie de l’enfant concu depuis la separation. 2 Toullier, p. 124, par. 811; 2 Boilleux, commenting on Art. 313, C. N., p. 72.
    This presumption of the paternity of the child of the wife, born since the separation from bed and board, is not conclusive; the husband is permitted to dispute it by suit; but if the paternity of the child is not thus disavowed by the husband or his heir, the presumption that the husband is the father becomes absolute, and the legitimacy of the child placed beyond question. Civil Code, Arts. 188,191; Napoleon Code, Art. 313, as amended by the law of 1850, Art. 318; lDalloz, Code Annote, Art. 313; 2 Boilleux, 79, 73; 3 Laurent, p. 480, par. 376 ; 2 Marcade, commenting on Art. 318, as to form action on desaveu; 2 Boilleux, 87, 88; 1 Rob. 585; 44 An. 441.
    The Code, in declaring the legitimacy of the child, born three hundred days after the separation from bed and board, may be contested by the husband, de.fines the extreme duration recognized by law of the period of gestation which, with certain exceptions, must elapse to permit of the dispute by the husband of the legitimacy of the child, but the period beyond the three hundred days to the birth of the child of the mother separated from bed and board, not divorced, is unimportant on the question of legitimacy; the requirement of the law on that issue is that the husband, or his heir, shall disavow the paternity of such child by suit, .and maintain the disavowal by proof. Civil Code, Arts. 188,191, and authorities cited above.
    A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Weaver, J.
    
    
      White & Thornton and R. J. Bowman for Plaintiff, Appellant,
    cite: C. C. 143; 11 An. 657, 853; O. C. 210; 44 An. 433, 441; 12 An. 853; 1 R. 581.
    
      W. C. Roberts and R. E. Milling for Defendants, Appellees,
    cite: O. C. 186, 187; 30 An. 1300; 44 An. 441.
    Argued and submitted June 6, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the mother and tutrix of Ross McNeely, alleged to be the child of -Ludlow McNeely, deceased, sues for the recognition of the child as the sole heir of the deceased, and to have annulled his last will, by which he constituted as universal legatee his brother, J. H. McNeely, the defendant. The will is assailed as not conforming to the legal requisites of nuncupative testaments under private signature. The defence is substantially that the will is valid, and a denial of the alleged paternity of the child. From an adverse judgment plaintiff appeals.

The deceased was separated from bed and board from his wife on the 23d May, 1889. The child, on whose behalf this suit is brought, was born on the 10th April, 1890. The deceased, by his last will, bequeathed all his property to his brother, and died on the 29th April, 1893. The paternity of the child was never disavowed by the deceased, and the question is whether the legitimacy of the child can be disputed by the universal legatee.

The Oode declares that without proof of cohabitation between the spouses since the separation from bed and board, the legitimacy of the child born of the wife three hundred days after the separation may be contested. This is the supposed presumpt.on relied on by the defendant, the universal legatee, the child whose legitimacy is disputed having been born three hundred and fifteen days after the judgment of separation. In estimating the force of the presumption claimed by defendant, the expression “may be contested ” arrests attention as implying that more is required than the length of time to make effective the presumption. Accordingly, in a succeeding article, it is declared that in all cases specified in the Oode in which the presumption of paternity ceases, the father, if he intends to dispute the legitimacv of the child, must do it within one month after the birth, or two months if absent when the birth occurs, or he shall be barred from ever making the objection. A delay of two months is granted the heir of the husband, if he dies before the delay allowed without the objection. Oivil Oode, Arts. 188, 191. It would seem, therefore, that the presumption invoked by the defendant utterly fails, if, as in this case, the husband dies without disputing the legitimacy of the child. Our Oode does not define the disavowal required of the husband. The Napoleon Oode left no doubt on this point, nor is there any under our jurisprudence. The French commentators distinguish between the action to contest legitimacy given to all interested, when, for instance, that status is assumed when no marriage existed, and the action en desaveu” given to the husband or his heir. 4 Marcade, p. 18, par. 16. In either case, suit was required. The Napoleon Oode uses the expression “ desavouer,” “re■clamer,” “ contester,” and to remove all question on the point, declares : Toute acte extrajudiciare contenant le desaveu de la part du mari ou de ses heritiers, sera comme non avenu s’il n’est suivi d’une action en justice dirigée contre un tuteur ad hoc donné a l’enfant et en presence de sa mere.” Napoleon Oode, Art. 318. Our decisions have been in accordance with this view. Tate vs. Penn., 7 N. S. 553; Eloi vs. Mader, 1 Rob. 584; Dejol vs. Johnson, 12 An. 855; Saloy case, 44 An. 435. It is, in our view, clear, tinder our Oode, that the legitimacy of the child of the wife not divorced, born after the judgment of separation of bed and board, can not be disputed, unless the suit is brought by the husband to disavow that legitimacy.

Our conclusion is fortified on this point by an examination of the articles of the Napoleon Oode. That code announces, “ L’enfant concu pendant le marriage a pous pere le mari,” and that presumption is maintained except in specified cases. That code as it originally stood took no account of separation from bed and board not followed by divorce, as disturbing the presumption of paternity. Napoleon Oode, Sirey, Art. 313. Article 313 now has this addition: “ En cas de separation de corps le mari pourra desavouer l’enfant qui sera né trois cents jours apres 1’ordinance du president * * * l’action en desaveu ne sera pas admise s’ il y a en reunion de fait entre les epoux.” Dalloz les Oodes Annotes, Art. 313. So under that code as under ours the action to disavow is essential, and birth after separation from bed and board merely is not enough to stamp the illegitimacy. See Arts. 312 to 316, Napoleon Oode.

The argument of defendant is based on the theory that the child in this case is without and not within the presumption of the paternity of the husband of the mother. In this connection we have considered all the authorities including Art. 136 of our Oode cited by defendant, which declares the judgment of separation puts an end to the cohabitation of the spouses. Of course, no action to disavow is requisite in those cases when the presumption of paternity absolutely ceases. 1 Robinson, 585, and Boilleux and other authorities there cited. But when we turn to our Oode and the analogous articles of the Napoleon Oode, we find the qualification of the presumption arising from birth after separation from bed and board, that the action to disavow must support the presumption.

This view of the controversy dispenses us from the examination of the testimony tending to show the child was not of the father and that of the contrary bearing, administered on behalf of defendant. The legitimacy of the child rests on another and impregnable basis.

On the question of the will in nuncupative form by private signature, we note the contention of plaintiff that there is no proof the testator caused it to be written. As we appreciate the testimony irrespective of that objected to, it is shown the testator presented the will to the witnesses and declared it to be his will. Oivil Oode, Arts. 1581, 1648. We think the legal requisite was fulfilled. Wood vs. Roane, 35 An. 865. But the will is reducible to the disposable portion. C. C., Art. 1493.

We think it best to reserve for future adjudication the questions of revenues to be accounted for, debts paid and improvements on the property claimed to have been made by defendant. These and other questions of account can best be adjusted when the executor files his account.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed, and it is now decreed and adjudged that Ross B. McNeely be and he is hereby decreed to be the legitimate child of Ludlow.McNeely, deceased, and his wife, M. L. McNeely, and as such entitled to the legitime one-third of the property left by said deceased; that the will of said deceased in favor of his brother, J. H. McNeely, be and is hereby decreed to be reduced to the disposable portion, two-thirds of said property; that all questions of rents or revenues, improvements and debts, paid or to be paid, be reserved for further proceedings in the lower court, and that defendant pay costs.  