
    SUCCESSION OF Albert TOCA, Jr.
    No. 13174.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1983.
    Rehearing Denied July 26, 1983.
    Louis A. Gerdes, Gerdes & Valteau, New Orleans, for plaintiffs-appellants.
    Eugene M. McEachin, Jr., Curtis, Hyde, Mooney & McEachin, Metairie, for defendants-appellees.
    Before REDMANN, C.J., and GULOTTA and SCHOTT, JJ.
   PER CURIAM.

Albert Toca, Jr. died intestate December 31, 1973. His legitimate son was placed in possession of Albert’s estate in January 1974. The children of a predeceased, allegedly acknowledged illegitimate son sued March 27, 1981, for half of Albert’s estate. Had that other son been legitimate, that action would have been timely and would have resulted in a judgment in favor of his children. But La.C.C. 919 (1870) denied inheritance to an acknowledged illegitimate from a parent survived by legitimate descendants.

The petition of the children of the illegitimate son was therefore dismissed, and they appeal.

Succession of Clivens, 426 So.2d 585, 594 (La.1988), holds

that Succession of Brown [388 So.2d 1151 (La.1980)], holding La.C.C. art. 919 unconstitutional, is to be applied retroactively ... to January 1, 1975, the effective date of the Louisiana Constitution of 1974... .

Clivens upheld C.C. 919 against the illegitimate heirs of one who died September 24, 1971.

We follow Clivens to apply C.C. 919 to deaths occurring prior to January 1, 1975, as does White v. Mitchell, 426 So.2d 621 (La.App. 1 Cir.1988).

Affirmed.

REDMANN, C.J., dissents with opinion.

REDMANN, Chief Judge,

dissenting.

Clivens’s conclusion that an illegitimate descendant must constitutionally have equal inheritance rights only if the decedent died on or after January 1,1975 does not square with Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31, in which the decedent died in 1974.

The correct conclusion is that the right of an illegitimate to inherit does not derive from the Louisiana supreme court’s opinion in Succession of Brown but from the Equal Protection Clause, U.S. Const.Amend. 14. La.C.C. 919 violated that Clause in 1974 as much as did the Illinois act that Trimble invalidated. La.C.C. 919 also violated the Equal Protection Clause on December 31, 1973, when Albert Toca, Jr. died.

The judgment should be reversed.  