
    In the Matter of the SUCCESSION OF Sam BISSIC, Deceased.
    No. 14925.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    On Rehearing May 3, 1983.
    Dawkins, Coyle & Carter by Michael S. Coyle, Ruston, for plaintiff-appellant, L.C. Bissic.
    Napper, Madden & Rogers by Thomas W. Rogers, Ruston, for defendants-appellees, Rosetta Garner Bissic, Sam Morrell Bissic, and Artis Taylor Bissic.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

In this case filed in July 1980, an alleged acknowledged illegitimate child seeks to prove his filiation with the decedent who died in 1969 and to set aside a judgment of possession rendered in 1970 which recognized others as the legitimate children and sole heirs of the decedent. After trial, the trial court held that the decision in Succession of Brown, 388 So.2d 1151 (La.1980), affirming 379 So.2d 1172 (La.App. 2d Cir.1980), declaring LSA-C.C. Art. 919 unconstitutional should be applied prospectively only and that since plaintiff was excluded from inheriting from his parent who was survived by legitimate children under LSA-C.C. Art. 919 prior to the declaration of that article’s unconstitutionality, he had no legal standing to claim inheritance rights and to set aside the judgment of possession. From a judgment rejecting his demands, plaintiff appealed.

The issue presented by the appeal is whether the decision in Succession of Brown should be applied retroactively or prospectively only.

The issue has been squarely presented to and decided by the Courts of Appeal for the First, Third and Fourth Circuits. Each of the three circuits held that the Brown decision should be applied prospectively only and should not be given retroactive effect. Succession of Ross, 397 So.2d 830 (La.App. 4th Cir.1981); Succession of Clivens, 406 So.2d 790 (La.App. 4th Cir.1981), writ granted 411 So.2d 47 (La.1982); Harlaux v. Harlaux, 411 So.2d 581 (La.App. 1st Cir.1982), writ granted 414 So.2d 380 (La.1982); and Succession of Layssard, 412 So.2d 135 (La.App. 3d Cir.1982), rehearing denied 1982, writ application filed and pending. In Herndon v. Herndon, 388 So.2d 463 (La.App. 2d Cir.1980), decided after this circuit’s decision in the Brown case but pri- or to its affirmance by the Supreme Court, this court held that Brown, if affirmed by the Supreme Court, should not be given retroactive effect.

A contrary result may be indicated by Succession of Richardson, 392 So.2d 105 (La.App. 1st Cir.1980), writ denied 396 So.2d 1324 (La.1981) and Smith v. Stephens, 412 So.2d 570 (La.1982), reversing 401 So.2d 674 (La.App. 3d Cir.1981), in which similar actions by alleged acknowledged illegitimate children whose parent died prior to the Brown decision were remanded to the trial court for trial or hearing on exceptions. However, the issue of retroactive versus prospective application of the Brown decision was not raised or discussed in either of those cases.

Following the uniform decisions of the Courts of Appeal in the cases in which the issue has been presented, discussed and resolved, we hold that the decision in Succession of Brown declaring LSA-C.C. Art. 919 unconstitutional should be applied prospectively only, that is, only to inheritance rights coming into existence by reason of the death of a parent after October 24, 1980, the date the decision in Brown became definitive. The plaintiff’s alleged parent having died in 1969 prior to the effective date of the Brown decision, the plaintiffs rights as opposed to the rights of the legitimate children of the parent are governed by the law as it existed at the time of the parent’s death and plaintiff may not avail himself of the subsequent declaration of unconstitutionality of LSA-C.C. Art. 919.

The acts amending LSA-C.C. Arts. 208 and 209, Act 549 of 1980 and Act 720 of 1981, do not purport to create inheritance rights in illegitimate children whose parents died prior to the effective date of the Brown decision.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.

MARVIN, Judge,

dissenting.

I respectfully dissent.

In Smith v. Stephens, cited supra, the supreme court held that an illegitimate child of an intestate parent who died in 1957 may proceed to prove her filiation and may assert in the same action her claim, as an irregular heir, to succession property against the intestate’s legitimate children who were placed in possession in 1959 and against the purchaser who acquired the property from the heirs in 1971.

The court said that the exception to the illegitimate’s suit filed by the defendant purchaser of the property would be treated as an exception of no right of action, which is sometimes used to determine whether a plaintiff has a right to invoke a remedy which the law extends only conditionally. Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972), cited by the supreme court, noted that a plaintiff’s right to claim a particular remedy may sometimes present a question of law which is dispositive of the merits of a plaintiff’s demands. 262 So.2d at p. 335. Considering the exception in the light of Babi-neaux, the supreme court in Smith said:

“[JJudicial economy will best be served by allowing [the illegitimate] to seek recognition as an irregular heir of [the decedent] and claim an interest in the ... succession in a single suit.” 412 So.2d at p. 573.
“[The illegitimate] may introduce evidence of her filiation and, thus, her entitlement as an irregular heir, at a hearing on the exception of no right of action. If she is successful in proving filiation, the grounds for the exception will be removed, and the suit [claiming an interest in the succession property] may proceed.” supra at p. 574.

It is inconceivable to me that the supreme court would later say to the Smith illegitimate after she had proved her filiation that she did not have a cause of action or legal standing to claim, as an irregular heir, an interest in the succession property of her intestate parent, even though that parent died in 1957, 23 years before Brown. The Smith illegitimate’s claim to an interest in succession property, as an irregular heir, as discussed by the supreme court in 1982, could have been based only on Brown and the notoriety that decision has been receiving in this state.

Additionally, I must observe that the Legislature, by limiting the time in which an illegitimate .would be allowed to prove filiation, forecast the retroactive effect of Brown. See CC 209 B and § 4 of Act 549 of 1980 and § 2 of Act 720 of 1981. This is in accord with the general rule that a judgment declaring unconstitutionality is applied retroactively as well as prospectively. Lovell v. Lovell, 378 So.2d 418 (La.1979). Brown’s purpose was to end unlawful discrimination against illegitimates.

It is difficult to reconcile the vestigial effect of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), which, on a less than critical examination in 1971, found CC 919 constitutional. Perhaps a more logical and explainable result in these cases would have been to extend Brown only to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), in 1977, or to the January 1,1975, effective date of the Louisiana Constitution. See Brown, supra, pp. 1153-1154.

Faced with this dilemma, and perhaps with a mis -understanding of Smith v. Stephens, I can only dissent from the majority holding that this illegitimate, whose parent died in 1969, has no legal standing to prove filiation and to claim inheritance rights.

ON REHEARING

Before PRICE, HALL, MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.

SEXTON, Judge.

We granted a rehearing herein subsequent to the Supreme Court’s original opinion in Succession of Clivens, 426 So.2d 585 (1982), which would control and thus alter the original opinion in this cause. However, on rehearing three justices of our Supreme Court held that the effects of Succession of Brown, 388 So.2d 1151 (La.1980), are to be retroactive both as to testate and intestate successions to the effective date of the Louisiana Constitution of 1974, to-wit January 1,1975, with one justice concurring in the result asserting his position that the Succession of Brown should be prospective only from the date of that decision, September 3,1980. The effect of Clivens is that a majority of the Supreme Court would not give retroactive effect to Brown beyond January 1, 1975.

Thus, Clivens is squarely dispositive of the claims asserted here, as they arose prior to January 1, 1975. The judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.  