
    (89 South. 757)
    No. 23645.
    MINOR et al. v. YOUNG et al. In re YOUNG.
    (Nov. 3, 1920.
    Consent Judgment Feb. 17, 1921.)
    
      ■(Syllabus by Editorial Staff.)
    
    1. Appeal and error 1106(4) — Court of appeal may remand ease for further proof.
    The Court of Appeal may remand a case for further proof where the evidence is deemed insufficient.
    2. Marriage &wkey;8 — Law prohibiting marriage between white and colored persons held not to affect status at its passage.
    Act No. 54 of 1894, prohibiting marriage between blacks and whites, relates to future marriages, and would not disturb a marriage status legally existing at the time of its passage.
    3. Descent and distribution &wkey;>! — Succession; there is no inherent right to succeed to a deceased person’s estate.
    There is no inherent right in any one to succeed to the estate of a person deceased, and the rules of transmission of property are left to the wisdom of the state’s lawmakers.
    4. Bastards <&wkey;!05 — Method of legitimation intended to cut off more remote lawful relatives from inheritance.
    Civ. Code, art. 180, fixes the status of children born out of wedlock as illegitimate with no inheritance except when the affirmative act of parent or parents elevates them to the status of legitimate or acknowledged children (articles 198, 200, 202, 238), and the purpose of these restrictions is not to punish the offspring, but to warn transgressors, and the formal method of giving the child the greatest legal rights possible short of marriage was intended to cut off the rights only of more remote lawful relations, who would be otherwise preferred.
    5. Bastards <&wkey;l05 — Illegitimate child acknowledged by mother, may inherit from her whether acknowledged by father or not.
    Civ. Code, art. 203, permits the mother alone in a proper case to acknowledge her illegitimate child without regard to the father’s action, for even his acknowledgment under article 918 et seq. does not give the right of inheritance from the mother who has not acknowledged; yet, if the father has not acknowledged and the mother has, it may inherit from her. '
    6. Bastards &wkey;>105 — Acknowledgment is a condition precedent to inheritance by or from an illegitimate child.
    In view of Civ. Code, arts. 208; 918, 919, and 922, acknowledgment is a condition precedent to the right of inheritance by or from an illegitimate child, and the right arises as to or in favor of the one alone who has so acknowledged, even though there were no legal impediment at any time to the parents’ marriage.
    7. Bastards <&wkey;>l, 8 — Only those acknowledged are called “natural children,” and inquiry into parentage is to entitle child to alimony.
    . Although under the French law all children born out of wedlock who are capable of acknowledgment are called natural children at their- birth, with us only those who have been acknowledged are recognized as natural children, all others being designated bastards, and the j’udicial inquiry into paternity or maternity is to enable the illegitimate child to demand alimony. Civ. Code, art. 242.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Scries, Bastard; First Series, Natural Child.]
    8. Bastards &wkey;> 13 — Acknowledgment by parents must be made according to statute to permit inheritance.
    In view of Civ. Code, arts. 202, 203, 20S-212, 241, 242-, 918-920, relating to acknowledgment, alimony, and • inheritance of children born out of wedlock such children may inherit only when formally recognized as provided by the Code, and proof of the parents’ acknowledgments orally and' by acts is wholly insufficient.
    9. Courts <&wkey;93(3)— Former decisions on law of inheritance create no vested right to inherit.
    Since there is no vested right of inheritance in any one, the court may interpret'the law of descent and distribution as it thinks best without regard to former decisions which could not make vested rights.
    10. Bastards <&wkey;5 — Statute admitting writings in proof of paternity held not to admit them to prove parents’ acknowledgment.
    Civ. Code, art. 209, providing, with respect to a father, that proof of paternal descent of a child born out of wedlock may be made by all kinds of writings, the public and private declarations of the father, etc., does not permit such evidence to establish parents’ acknowledgments of illegitimate children for the purpose of inheritance.
    Provosty, X, dissenting.
    Certiorari to Court of Appeal, Parish of Terrebonne.
    Action by Mathilda and Mary Minor against Francis Young and others. A judgment for plaintiffs was affirmed on appeal by the Court of Appeal, and the defendants bring certiorari.
    Judgments of the district court and Court of Appeal annulled and set aside, and decreed that demands of the plaintiffs be rejected.
    See, also, 144 La. <335, 81 South. 20S.
    Calvin Wurzlow, of Houma, for applicants.
    Stubbs, Theus, Grisham & Thompson, of Monroe, and Butler & Wurzlow, of Houma, for Francis Young and others on rehearing.
    A. Y. Coco, Atty. Gen., and Phanor Breazeale, of Natchitoches, for the State, amici curias.
    Harris Gagne, of Houma, for respondents.
    Hampden Story and Foster, Looney & Wilkinson, all of Shreveport, for respondents on rehearing.
    
      
       This case, originally published in 148 ■ La. 610, 87 South. 472, is here reprinted because the first publication omitted the dissenting opinion of Mr. Justice Provosty.
    
   DAWKINS, J.

Alleging themselves to be the natural children of Bachel Clark, deceased, plaintiffs seek to recover of defendants certain real property situated in the town of Houma, La., which belonged at her death to the said Rachel Clark.

Defendants are the transferees of Francis Young, lawful sister of the deceased, who claims, to have inherited as her sole legal heir, and contest the right of plaintiffs to recover upon the ground that they were never legaiiy acknowledged by the said Rachel Clark, so as to entitle them to inherit from her.

The district court gave judgment for defendants, .which was, on first hearing, reversed by the Court of Appeal, and the case decided in favor of plaintiffs. On rehearing the latter court set aside its first judgment, because of the insufficiency of the evidence to show the acknowledgment of pilaintiffs by deceased, and remanded the cause for further proof on this point. It was again tried in the district court, which, in conformity with the views expressed by the Court of Appeal on the question of law involved, found for the plaintiffs, and on the second appeal this latter judgment was affirmed.

The case is before us on certiorari for review.

Opinion.

Defendants claim that the Court of Appeal erred in the following particulars:

(1) In holding that the Legislature had not the right to change the laws of inheritance.

(2) In remanding the case to the district court for the reception of further evidence.

(3) In holding that the answers to leading questions, timely objected to, were sufficient to prove acknowledgment.

(4) In substituting the law of proof of descent for the proof of acknowledgment.

(5) In applying to the case at bar the jurisprudence with reference to acknowledgments other than as provided by the Code.

(6) In holding that the evidence was sufficient to give the plaintiffs the status of natural children.

(7) In holding that laws changing descent and distribution have no retroactive effect.

(8) In not requiring proof of acknowledgment by admissions and conversations of the mother, instead of mere evidence of descent to establish the status of natural children duly acknowledged.

(9) In holding that the law in force at the time of conception, instead of that existing at the opening of the succession, should apply.

Boiled down, tlie questions which we are called upon to answer, and the order in which we shall decide them, are as follows:

(1) Did the court err in remanding the case for further proof upon the question of acknowledgment, in the light of its conclusions upon the law?

(2) Conceding that it is legally permissible to prove acknowledgment, for the purpose of giving the status of natural children capable ofo inheriting, in any other form than those provided by article 203 of the Civil Code, is the proof, legally admitted, sufficient to sustain plaintiffs’ case?

(3) There having been no legal impediment to the marriage of plaintiffs* father (a white man) and mother (a colored woman) at the time of conception, did the subsequent passage of Act No. 54 of 1894,- prohibiting the marriage of blacks and whites, give the x>lain-tiffs the status of bastards at the date of their mother’s death on September 13, 1894, after that law had gone into effect?

(4) If the evidence is sufficient to prove maternity, and the act of 1S94 does not affect the case, can there be an acknowledgment, such as will give the right to inherit as a natural child, in any other manner or form than those provided in article 203 of the Code?

The Attorney General and other counsel have filed briefs as amici curiae in support of some of the contentions of defendants, in which they assert that there is another case of considerable importance to the state shortly to come before us, involving the same questions, and asking that we decide those issues adversely to the plaintiffs.

Taking up the first of the four questions propounded by us, counsel for defendants have not pressed it in brief, has cited no law in support thereof, and we know of nothing which prevented the Court of Appeal from remanding the case for further proof as was done. It was but following the example of this court. Scruggs v. Endom, 123 La. 887, 49 South. 630.

The evidence conclusively shows that the plaintiffs were the children of Rachel Clark, a woman of color, by a white man named Stex>hen Minor, for whom the mother worked during the time of their conception and birth, that they were born during the late ’70’s or early ’80’s, and that their said father died prior to the passage of the Act No. 54 of 1894, prohibiting marriage between blacks and whites. Plaintiffs lived with, were raised by, and treated by Rachel Clark as her children until the date of her death. She did not acknowledge them in afiy of the forms provided by article 203 of the Code, but the evidence does establish that she informally-recognized and spoke of them as hers, admitting in conversation that Minor was their father. This also took place prior to the passage of the act of 1894; so that, if this form of acknowledgment be sufficient in law, there being no legal impediment at the time it took place, we can see no more reason for its effects being destroyed by the passage of the act in question thereafter than if plaintiffs had been acknowledged by notarial act, or in either of the other ways provided in article 203 of the Code. In other words, the status would already have been established; the father had died, and it could not be said that by the passage of a subsequent law merely prohibiting the future marriage of persons of different races' the Legislature intended to destroy the legal relations of persons which had already become fixed. To say the least, the intention to do so would have to be plainly disclosed, and such was not done in the present case. In fact, the law does not attempt to deal with the question of inheritance or succession at all, except in so far as that result may follow from acts done in violation thereof in the future.

There is no inherent right in any one to succeed to the estate of a person deceased, and the rules of transmission or devolution of property in such eases are left to the wisdom of the lawmaking power of the state. Hyde v. Bank, 8 Rob. 416. That body has, in large measure, sought to vest such rights in those persons and in the order most nearly comporting with the ties of blood and nature, save where, as a matter of public policy, and in aid of the moral precepts of society, it has been found necessary, for the common.good, to change the order of things. The purpose of such restrictions is not to punish the offspring of those contravening these rules of morality, but to raise a warning barrier before the transgressor, prior to the act, of the consequences of his conduct; in other words, like all other penal laws, they seek to prevent rather than avenge. Accordingly our Code in declaratory terms has fixed the status of children born out of wedlock (C. O. art. 180) as “illegitimate! with no right of inheritance, except as the affirmative act of the parent or parents may elevate them from that state to the status of legitimated or acknowledged children. C. C. arts. 198, 200, 202, and 238; Montegut v. Bacas, 42 La. Ann. 158, 7 South. 449; C. C. 921.

Article 200 of the Code provides that either the father or mother may by notarial act legitimate his or her child born out of wedlock, when there existed no legal impediment to the marriage of the parents at the moment of conception, imovided the one so seeking to legitimate has no living lawful ascendants or descendants, thus clearly indicating by implication that even this highly formal method, giving to the child the greatest legal rights possible short of marriage, was intended to cut off the rights only of more remote lawful relations, as otherwise these would be preferred to the illegitimate child unacknowledged according to law. And again article 202 defines a bastard in the following language:

“Illegitimate children who have been acknowledged by their father are called natural children; those who have not been acknowledged by their- father, or whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown, are contradistinguished by the appellation of bastards.”

But this designation or definition of bastards, in so far as rights flowing to or from the mother are concerned, is necessarily enlarged by the following article, 203, which permits the mother alone, in a proper case, to acknowledge her illegitimate child, without regard to the action of the father; for, even if he has acknowledged it, by the plain provisions of article 918 et seq. this does not give the right of inheritance from the mother who has not; yet, if the father has not acknowledged and the mother has, it may inherit from her.

Article 203 reads:

“The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.”

Thus, clearly, either may acknowledge, in the forms prescribed, without the other, and article 922 provides:

“The estate of a natural child deceased without posterity, belongs to the father or mother who has acknowledged him, or in equal proportions to the father and mother, when he has been acknowledged by both of them.”

Hence, when these articles are read in connection with articles 918 and 919, prescribing the circumstances under which the illegitimate child may inherit from the mother and father respectively, it is made manifest that acknowledgment is a condition precedent to the right of inheritance by or from'such child, and the right arises as to or in favor of the one alone who has so acknowledged. Therefore, in the absence of acknowledgment in one of the forms provided by law, all children born out of wedlock are, as to the parent who has not acknowledged, bastards in the legal sense, even though there were no legal impediment at any time to the marriage of the parents. Hence it is, as above pointed out, the affirmative act of acknowledgment alone, by the parents, or either of them, which raises any illegitimate child from that status entitled to receive mere alimony to the quality of a natural or acknowledged child, with the right of inheritance.

There was and is no provision in the French law corresponding to article 202 of our Code, thus classifying- all illegitimate children, including those as between whose parents there was at the time of conception no legal impediment to marriage, as bastards. It follows that the French Code, their jurisprudence, and the discussions of the commentators deal with questions of proof or adjective law, and not with any provision of substantive law declaratory or status, as found in article 202 of our Code. In their case the courts are concerned merely with the character and sufficiency of the evidence of paternity or maternity, while we have to consider positive and seemingly mandatory provisions of our law, fixing: First, the status of all children born out of wedlock as bastards; and, secondly, Jefinite forms or methods for changing that status. ,

“Natural filiation is the work of nature alone. Natural children are those who have not been conceived, or at least who have not been born, in marriage. Their filiation, as that of legitimate children, is called paternal or maternal, according as one is looking toward the one or the other parents. But there exists a considerable difference between legitimate children and natural children. As to one, as we have before seen, proof of legitimate maternity necessarily entails that of legitimate maternity; but natural paternity and natural maternity are, on the contrary, entirely independent one of the other from the point of view of proof. Illegitimate maternity can be established when paternity remains an unknown fact, and inversely. From' the maternity of a married woman the law presumes the paternity of her husband. In the matter of natural filiation no presumption of this kind can be made.” Baudry-Lacantinerie, treatise Persons, No. 612.
“Voluntary acknowledgment is a declaration of paternity or maternity made by the father or by the mother of a natural child in the form prescribed by law. The authentic act which constitutes such acknowledgment forms the title of a natural child. It constitutes the regular and normal mode of proof of natural filiation, just as the registry of .birth constitutes the regular mode of proof of legitimate filiation. From the point of view of filiation, the act of acknowledgment is, 'then, for the natural child what the act of birth is for the legitimate child.” Id. 614.
“In certain cases the law admits the natural child who has'not been the object of a voluntary acknowledgment to establish such fact judicially. This is what is called the research of maternity or paternity. If the child succeeds in such research — that is to say, if he obtains a judicial decision declaring that such and such a man is his natural father, or that such and such a woman is his natural mother— his filiation is considered established by judicial or forced acknowledgment. These expressions may appear singular, the word ‘acknowledgment’ seeming to imply a voluntary act on the part of' the one who acknowledges, but the law authorizes -such employment.
“The law, then, considers also an acknowledgment the judicial establishment of paternity or maternity, and in order to distinguish from the voluntary acknowledgment calls such the forced or judicial acknowledgment. This observation is of great importance. The judicial establishment of paternity ol maternity constitutes in the eyes of the law an acknowledgment. It results from this that the texts which speak of natural children legally acknowledged are applicable to children whose filiation is judicially established, as well as to those -whose filiation is established by voluntary acknowledgment.”
Id. No. 662.

Thus it is seen that, under the French law, all children born out of" wedlock who are capable of acknowledgment are called natural children from their birth; while with us it is only those who have been acknowledged who are recognized as legal children; all others being designated hy the appellation of bastards. With us the judicial inquiry into paternity or maternity is for the purpose of enabling the illegitimate child to demand alimony. C. O. art. 242..

“In our ancient law natural children were called bastards. Their situation was more miserable, since they were serfs. They were absolutely excluded from the legitimate family, with the exception always of bastards and children of certain high nobility. The only right accorded to bastards was the right of alimony.
“The principles of the law of intermediate period tending to assimilation between the effects of natural and legitimate filiation became a menace to the existence of the legitimate family, the foundation of society. On the other part, it is not considered just to exclude natural children from all rights with regard to their parents and thus render them responsible for a fault which they had not committed. The Civil Code of France, therefore, takes a middle position. It accords them certain restricted rights, but on condition of having been acknowledged by their parents of a proof of natural filiation.”
Carpentier & Du Saint, Rep. vol. 20, p. 196.

We find, therefore, that under the French law, as well as the 11th law of Toro, proof of filiation and the judicial determination of that fact alone were sufficient to entitle the natural or illegitimate child to inherit (under the latter even adulterous or spurious children might inherit from the mother); and there appears to have been no such thing as an informal verbal acknowledgment, as distinguished from proof of filiation or enforced judicial acknowledgment, under the French law as has been held essential in the decisions of this court, such as Succession of Vance, 110 La. 760, 34 South. 767.

Article 203 of our Code is positive, and appears to be mandatory, as to the methods of acknowledgment. Yet it is contended by counsel for the plaintiffs, and has been so held by this court, that illegitimate children of the mother may make proof of acknowledgment in other ways. The- basis for this contention and holding is the article 212 of the Code, and the dicta of the French courts and commentators under a different condition of the law, as above pointed out. We quote article 212:

“Illegitimate children of every description may make proof of their maternal descent, provided the mother be not a married woman.
“But the child who will make such proof shall be bound to show that ho is identically the same person as the child whom the mother brought forth.”

This is but a partial perpetuation of the old rule under the 11th law of Toro, when no distinction, as above pointed out, was made between natural children and bastards with respect to the mother. However, our Code draws a very clear distinction between such children, even as to the mother, as we shall show further on. If the mere proof of filiation were sufficient to establish acknowledgment, it would seem to follow that on making such proof any illegitimate child might inherit from his mother, provided she were never married, notwithstanding it might be an incestuous or adulterous bastard (resulting from the relationship of the parents within prohibited degrees," or because of the fact that the father was at the time of conception a married man, or because of other legal impediments to the marriage), save and except in the single case where the mother is a married woman. However*, we observe that article 920 provides:

“Bastards, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above' mentioned [that is, under articles 91S and 919] the law allowing them nothing more than a mere alimony.”

By the cases above mentioned are meant those cases where, for the lack of relations with a greater legal right, acknowledged illegitimate children would inherit and from which bastards, adulterous or incestuous children are excluded.

Then, again, article 20S, succeeding closely- on the heels of articles 202 and 203 of the Code, says:

“Illegitimate children who have not been legally acknowledged may be allowed to prove their paternal descent.”

And in the following articles (209, 210, and 211) the ways and cases in which this proof may be made are set forth. Then follows the article 212 with reference to the proof of maternal descent already quoted, and the natural and logical meaning and effect of arrangement, with the juxtaposition of those articles in the section 2 of chapter 3 of the Code under the heading “Of the Acknowledgement of Illegitimate Children,” seem to indicate rather clearly that, while the descriptive term “who have not been legally acknowledged” used in article 20S with reference to proof of paternal descent was not repeated in article 212, dealing with proof of maternal descent, it was so intended and must be read into the latter article. No other interpretation seems consistent with the purpose of the lawmaker; for it does not seem reasonable that, after declaring in positive and mandatory terms what should be done to lift the bastard, with “no relations,” without right of inheritance, to the plane of an acknowledged child, with rights superior to all others save lawful descendants, he would have, in such loose fashion, provided so simple a means of dispensing with the rigid formalities thus required, especially when the language used, if such were intended, clearly conflicts with other prohibitive provisions of the same Code as to adulterous and incestuous bastards.

As a further illustration and proof of the limited purpose or effect of the mere proof of maternal descent under article 212, we advert to the provisions and requirements of the Code with respect to the right to claim alimony from the father or mother, or their heirs after death:

“Art. 241. Alimony. — Illegitimate • children have the right to claim this alimony, not only from their father and mother, but even from their heirs after their death.
“Art. 242. Alimony when Demanded. — But in order that they may have a right to sue for this alimony, they must:
“1. Have been legally acknowledged by both their father and mother, or by either of them from whom they claim alimony; or they must have been declared to be their children by a judgment duly pronounced, in cases in which they may be admitted to prove their paternal or maternal descent;
“2. They must prove in a satisfactory manner that they stand absolutely in need of such alimony for their support.”

In the absence of legal acknowledgment, it is made a condition precedent to the right to sue for alimony that the child should have first obtained a judgment of court, contradictorily with father or mother, or their lawful heirs, declaring him to be his or her child, and such judgment of parentage can be had in those eases alone where the proof is admissible under the articles 208 to 212, inclusive. Does it seems reasonable that the authors of the Code would have been so solicitous of the rights of legal heirs as to require such conditions to precede the right even to sue for alimony, and at the same time have permitted not only a right of action based upon the bare allegation of informal verbal acknowledgment, but upon the proof thereof, the recovery -of the entire estate, to the exclusion of these same lawful relations, when the only authority for the admissibility of such evidence is these same provisions of the Code limiting the modes of proof in actions for alimony?

The jurisprudence has vacillated somewhat on this point, and we are confronted with the duty of either perpetuating what seems t'o be a misinterpretation of the law by reaffirming those decisions holding that acknowledgement may be made by informal verbal declaration of the mother, or of following what we conceive'to be the plain requirements of the Code and the few cases coinciding with our present views.

It is argued, of course, that the interpretations of these provisions of the law have established a rule of property, and the views formerly announced should not. be changed to tlie prejudice of those claiming in accordance therewith. However, there is, as heretofore, pointed out, no vested light of inheritance in any one, and either the Legislature, by enactment, or this court, by interpretation, may declare the law to be what the former thinks best, and what the latter deems most in accordance with correct legal principles, without doing violence to any claims which may arise in the future. Hughes v. Murdock, 45 La. Ann. 935, 13 South. 182; Waugh v. Riley, 68 Ind. 482.

We can see no useful purpose in reviewing the past conflicting jurisprudence, which admittedly exists; that speaks for itself. Neither can we find any basis for that part of the jurisprudence which has distinguished between the proof of filiation and informal verbal acknowledgment. No such distinction existed in either the Spanish or French law or jurisprudence which form the foundation for those decisions of this court. The French law simply made the judgment of court under the research of parentage or proof of filiation the same as the formal acknowledgment, and we find no reference to informal verbal acknowledgment except as such may have formed a part of the proof of filiation. However, the decisions to which we refer seem to have introduced into our law this species of acknowledgment. Badillo v. Tio, 6 La. Ann. 130 ; Succession of Vance, 110 La. 760, 34 South. 767; Succession of Gravier, 125 La. 733, 51 South. 704. This doctrine probably arose from the fact that article 209 with respect to the father, provides that proof of paternal descent may be made by all kinds of writings, the public or private declarations of the father, or when the mother of the child has resided in the house of the father as his concubine. But .these declarations are merely a species of proof in the establishment of paternal descent permitted on the part-of “illegitimate children who have not been legally acknowledged * * * ” (article 208), and it is nowhere provided in the Code that such declarations within themselves constitute an acknowledgment as distinguished from proof of filiation. And it appears as -significant to us that, while there is an express provision for the judicial establishment of parentage to enable the illegitimate child to demand alimony (article 242), as hereinabove shown, there is no provision for any such proceeding to establish “enforced” acknowledgment or the right to inherit.

In conclusion we reiterate that we think the fundamental error running through the decisions holding contrary to the views herein announced has been the failure to observe the difference between our codal provisions, classifying all illegitimate, unacknowledged children as bastards, or without right of inheritance, and the French law, which, on the contrary, recognized all such as natural children, and merely postponed the right to inherit until filiation had been judicially established.

For the reasons assigned, the judgments of the district court and Court of Appeal are annulled and set aside, and it is now ordered, adjudged, and decreed that the demands of plaintiffs be rejected at their cost. ■

O’NIELL, J., concurs in the decree.

PROVOSTY, J.

(dissenting). The-majority opinion finds that proof of acknowledgment by the mother cannot be made, by other evidence than by a notarial act or the registry of birth or baptism.

That conclusion is sought to be justified by reasoning which may be said to be founded upon the text of article 203, and upon the word “bastard,” in article 920, when taken in connection with the classification of illegitimate children into natural children and bastards in article 202,

These articles read:

“Art. 202. Illegitimate children who have been acknowledged by their father are called natural children; those who have not been acknowledged by their father, or whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown, are contradistinguished by the appellation of bastards.
“Art. 203. The acknowledgment of an illegitimate child shall be made by a declaration executed before a- notary public, in presence of two witnesses, by the father and mother; or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.”
“Art. 920. Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”

These same articles in the Code of 1825 read:

“Art. 220. Illegitimate children who have been acknowledged by their father are called natural children; and those whoso father is unknown are contradistinguished by the appellation of bastards.
“Art. 221. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child.”
“Art. 914. Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the eases above mentioned, the law allowing them nothing more than a mere alimony.”

It is thus seen that in the Code of 1825 there was the same classification of illegitimate children into natural and bastard; that the same word “bastard” occurred in article 914, now 920; and that the text of article 203, then 221, was the same as now, except that the words “by the father and mother or either of them,” • were added in the revision, and that the last paragraph of the article was omitted, which reads:

“No other proof of acknowledgment shall be admitted in favor of children of color.”

The interpolation of the words “by the father and mother or either of them” in article 914 has wrought no change in the article, since an acknowledgment cannot be made by anybody except the father and mother, or either of them.

In like manner the words added to article 202 have effected no change in the article —for all that concerns the present discussion — since by both articles unacknowledged illegitimate children are classified alike into natural and bastard.

Now, the point which I desire to make is that, all this reasoning of the majority opinion would have been just as apposite under the Code of 1825, and yet would have been squarely refuted by the presence in article 221 (now 203) of the paragraph for denying to colored children the privilege of proving acknowledgment by other evidence than a notarial act or the registry of birth or baptism. This paragraph, by excluding colored children specially from -that privilege, showed conclusively that white children enjoyed it.

In saying that the reasoning of the majority opinion would have been just as apposite under the Code of 1S25, I do not lose sight of the fact that this additional paragraph to article 221, now 203, has been left out of the article as revised in our present Code. I will come to that presently. All I say now is that the reasoning of the majority opinion, as founded on the text of article 203, and on the juxtaposition of the word “bastard” in article 920 with the classification made in article 202, would have been squarely refuted under the Code of 1S25 by the presence in article 203, then 221, of the said additional paragraph.

Now, if the purpose of the omission of that paragraph had been to change the law of inheritance, there would he a difference between the two Codes in that respect; but we know historically that that was not the purpose, but that the sole purpose was to put colored children on the same plane with white children, such having been, as is well known, the spirit prevailing with our legislators in 1870. In like manner every other provision of the Code of 1825 drawing the color line was omitted from the revision.

The framers of the Code of 1S25 did not consider that article 221, now 203, oF article 914, now 920, or the two in combination, or any other articles of their Code, would preclude illegitimate children from proving acknowledgment otherwise than by notarial act or registry of birth or baptism; for if they had so considered they would not have added a special clause to prevent colored children from being admitted to make such “other proof.”

Inasmuch, then, as this , additional clause to article 221, now 203, in the Code of 1825, shows conclusively that the framers of that Code understood that such “other proof” of acknowledgment was to be excluded only in the case of colored children, and inasmuch as those learned gentlemen must be supposed to have had a correct appreciation of the scope of the articles they were drafting, and inasmuch as the articles of that Code and those of our present Code in so far as pertinent to the present discussion are the same, except in respect to the said additional clause to article 221, now' 203, having been left out of our present Code when it was revised in 1870, the conclusion would seem to be forced that, if such proof is to be excluded under our present Code, it is because the said additional clause to article 221, now 203, has been left out of our present Code; and yet we know, historically, that the object of leaving out the said clause from the Revised Code was not to accomplish any such change a's this, or to affect in the slightest particular the meaning of article 221, now 203, as excluding or allowing other proof of acknowledgment than an authentic act or registry of birth or baptism in the case of white children, but that the object, and the sole object, was to put colored children on the same plane with white children in the matter of proving acknowledgment by “other proof” than an authentic act or registry of birth or baptism.

It is noteworthy that, while our Code (article 180) provides that legitimation can be effected only “in the manner prescribed by law,” it makes no such provision with regard to acknowledgment.

So much for that.

The majority opinion finds that article 202 is “substantive law,” and that the fact of the Code Napoléon containing no corresponding article differentiates the two Codes.

By substantive law is meant law which creates rights or obligations. 37 Cye. 508. This article 202 does not do that, but merely makes a classification.

True it is that no corresponding article or any such classification is to be found in 'the Code Napoléon. But no argument can be founded on that, since all classifications and all purely abstract propositions were left out of that Code. The framers of it did not, like the framers of our Code, interlard their work with such mere scholastic matter — out of place in statutory law, however useful in a treatise — but confined themselves as far as possible to purely substantive, or regulatory, legislation. And the reason for it, as explained by the commentators, was that all such generalizations were considered both out of place and dangerous in a statute.

This court has had occasion more than once to animadvert upon such generalizations in our Code, as shown by the following, which I transcribe from Hennen’s Dig. p. 250, No. 11:

“Our Codes were prepared by lawyers, who mixed with the positive legislation definitions seldom accurate and points of doctrine always unnecessary. The Legislature modified and changed many of the provisions relating to the positive legislation, but adopted the definitions and abstract doctrine without material alteration. From this circumstance, as well as from the inherent difficulty of the subject, the positive provisions of our Code are often at variance with the theoretical part which was intended to elucidate them; and, whenever that occurs, it is a sound rule of ‘interpretation to disregard the doctrine and consider the definition modified by the clear intent of the positive enactments. Ellis v. Prevost, 13 La. 237; Egerton v. Municipality No. 3, 1 La. Ann. 435.”

I am perfectly free to admit that article 920, with the comma in it after the word bastard, gives rise to an ambiguity when read in connection with article 202, classifying as bastards illegitimate children unacknowledged by the father or whose father is unknown. But I believe I can demonstrate that the said comma was inserted undesignedly, and should lie disregarded, so as to have the article read “Bastard adulterous or incestuous children,” etc., and not, as now, “Bastard, adulterous or incestuous,” etc.

The text of said article in the Code of 1S25 reveals the presence of this same comma, and yet nothing can be more certain than that that Code did not use the term “bastard” in any other sense than that of illegitimate child; for in that Code the classification of children was into legitimate and .bastard. “Children,” it is said, “are legitimate or bastards.” See article 27. In our present Code this was changed to—

“Art. 27. Children are legitimate or illegitimate. Legitimate children are those, who are born of a marriage lawfully contracted; and illegitimate children are such as are born of an illicit union.”

Articles 182 and 183 of our present Code speak of “adulterous and incestuous bastards,” placing them in a category by themselves. In like manner, I say, article 920 does not intend to do any more than this, and should be read without the comma after the word “bastard.” Thus:

“Bastard adulterous and incestuous children,” etc.

Punctuation serves to clarify written language, and a comma often has the effect of changing the meaning of a sentence; but commas are not unfrequently inserted with .no great thought to their effect. Indeed, some writers are said to be as prodigal of them in their manuscript as some people of black pepper upon their food. A comma which would put mere illegitimate children on a parity with adulterous and incestuous children should not be allowed to stand, unless known to have been inserted designedly. And in the present case it so happens that we have the very strongest kind of evidence that this particular comma was not inserted designedly. In the French text of the article, which as much as the English constituted the text of the Code of 1S25, the reading is:

“Les batards adultérins ou incestueux,” etc.

The corresponding article of the Code Napoléon, article 762, reads:

“Art. 762. Les dispositions des articles 756, 758, 759' et 760 ne sont pas applicables aux enfants adultérins ou incestueux.”
“La loi ne lour aecordc que des aliments.”

The articles here referred to are the same to which our article 920 has reference by the words:

“In any of the cases above mentioned.”

There .is, however, an even more conclusive reason than the foregoing for holding that this comma was not inserted designedly in this article. Article 202 does not say that children acknowledged by their mother “shall be contradistinguished by the appellation of bastards,” but only that children unacknowledged by the father shall be so distinguished. If, then, we allow this comma to remain in article 920, and'we read that article in conjunction with article 202, we have the result that an illegitimate child, unacknowledged by its father, or whose father is unknown, cannot inherit from its mother, even though duly acknowledged by her. Thereby this article 920 is brought into direct contradiction with article 918, which is one of cases to which it has reference by the words “in any of the cases above mentioned.”

To avoid the flat contradiction which would thus arise between these two articles, if this comma were left in article 920, the majority opinion resorts to the device of enlarging article 202, so as to include the mother.

In answer to this I might content myself with the statement that, the said article not saying “mother,” the court cannot make it say it. Article 203, which the majority opinion says enlarges said article 202, so as to insert in it the word “mother,” bears upon an entirely different subject. It purports simply to provide a mode of acknowledgment. It in no way undertakes to supplement a classification; whereas the whole purport of article 202 is the making of a classification.

But the matter lies very much deeper than this. Both in the French and in the Spanish law, from which the regulations of our Code on this subject of illegitimate children are derived, a fundamental distinction is made between the father and the mother in the matter of acknowledgment. I will not go into all that, but merely observe that the general idea of it is that the mother who does not love, recognize, and acknowledge her child is something of a monster; whereas the father, not having borne the child, and not having oftentimes any absolute assurance of his paternity, is not so intimately connected with it. It was designedly' that the mother was left out of said article 202, and not accidentally, or by oversight, as the majority opinion would suppose.

• Let us read article 920 with the comma in it, and see what the unavoidable consequence will be. It reads:

“Art. 920. Bastard, adulterous 'or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”

As I have just said, the cases referred to by said article by the expression “the cases mentioned” are those of articles 918 and 919, which articles read:

“Art. 918. Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by hér, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred.
“In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined by the rules established in the title: Of Father and Child.
“Art. 919. Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.
“In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined, as is directed in the title: Of Father and Child.”

Substituting to the word “bastard” in article 920 the definition of this word in article 202, and substituting to the phrase “in any of the cases above mentioned” the article itself, which is thus referred to (article 919), and we have the following:

“Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, “shall not enjoy the right of inheriting the estates of their natural father * * * who has duly acknowledged them.”

What nonsense this is!!

And what greater nonsense it is in the case •of inheritance from the mother; i. e., in the case of' article 918. Making the same substitutions, we would have:

Children who have not been acknowledged by their father, or whose father is unknown, or whose father could not have acknowledged them because they were adulterous, “shall not enjoy the right of inheriting the estates of their natural * * * mother * * * when they have been duly acknowledged by her.”

With such a reading of this article 920, what becomes of article 918, which provides that children acknowledged by the mother shall so inherit?

With all due deference I say it, my honored colleagues attach too much importance to the word “bastard” in' article 920. The word is there used in its ordinary sense. That article was transcribed verbatim, including tbe comma- after “bastard,” from the Code of 1825, and in that Code the term “bastard” was used to designate a child born out of wedlock. Thus article, 27 of that Code provided:

“Children are legitimate or bastards.”.

Acknowledgment- by the father may be said to be highly exceptional; whereas non-acknowledgment by the mother might be said to be equally highly exceptional. To place the two upon exactly the same plane in the law of inheritance would be going against the well-known law of human nature, and the law of successions is founded on human nature. .

The majority opinion would derive an argument from the use of the term “natural children” in the articles which regulate the rights of illegitimate children to the successions of their parents — articles 918 and others. For the purpose of that argument the assumption is made that the term “natural children” is there used in the specialized, or technical, signification imparted to it by article 202; i. e., the signification of children unacknowledged by the father. But that assumption Is wholly erroneous. If the term had been there used in its said specialized or technical signification, the clauses “when they have been duly acknowledged,” and “who has been duly acknowledged,” would not have been added; for they would have been necessarily implied from the term “natural.” ■ The reading would have been simply “natural children,” not “natural children when they have been duly acknowledged,” or the natural children whose father has acknowledged them. The adjective “natural” is there used in the ordinary sense of illegitimate; and the proof of this is that, if we- substitute to it the adjective “illegitimate,” the sense of the sentence remains precisely the same; whereas the expression “natural children when they have been acknowledged” carries the inevitable implication that natural children do not inherit unless, or until, they have been acknowledged, thus showing that the adjective “natural’’ is being used in its ordinary meaning, and not in the specialized or technical signifi- * cation imparted to it by article 202. In article 920 the word “natural” is manifestly used in its ordinary sense.

I have in this dissenting opinion confined myself to an analysis of the majority opinion. I have thought it unnecessary to reproduce here the arguments and considerations which have heretofore led this court, as composed of successive judges from 6 La. to 133 La., to adopt a view different from that now sought to be 'established by the majority opinion. In the case of Succession of Vance, 110 La. 760, 34 South. 767, this court distinctly refused to overturn that jurisprudence. Speaking through Mr. Justice Blanchard, and after citing the cases of Lange v. Richoux, 6 La. 560, Succession of Fortier, 51 La. Ann. 1585, 26 South. 554, and Bourriaque v. Charles, 107 La. 217, 31 South. 757, this court said:

“But though wc adhere to [these cases] the jurisprudence authorizing methods of acknowledgment of illegitimate children otherwise than as laid down in Civ. Code, art. 203. it is impossible to hold what Vance said to the witness Lee * * * suffices to invest her with the title of a legally acknowledged * * • child.”

In addition to the said cases thus cited, the court might have cited the cases of Jobert v. Pitot, 4 La. Ann. 305, Succession of Hebert, 33 La. Ann. 1099, and doubtless others, for I have not sought to make an exhaustive research, not deeming same at all necessary under the circumstances, the decisions being all one way. And since this Vance Case was decided the recent case of Briggs v. McLaughlin, 134 La. 133, 63 South. 851, has been decided in the same sense.

The overturning of this jurisprudence in an In re case, without the hearing of argument, is a dangerous practice. What assurance have we that our successors upon this bench will not return to that jurisprudence ?

In the majority opinion it is'said that our jurisprudence has “vacillated” on this point, and in support of that assertion the cases of Pigeau v. Duvernay, 4 Mart. (O. S.) 265, and Dupre v. Caruthers, 6 La. Ann. 156, are cited. The former of these cases was decided in 1816, whereas our Code was adopted in' 1825. The decision therefore cannot be said, to have been an interpretation of our Code. The other of these cases was decided by Justice Preston alone, a strong judge, no doubt, but better versed, as is well known, in the common law than in the civil law. Justices Eustis and Slidell concurred only in the decree, which could only mean a dissent from the doctrine of the ease; while Justice Host, one of the ablest judges we have ever had on this bench in a separate opinion, frankly dissented. But, conceding everything that can be said for those two decisions, why return after these many years to a conclusion authoritatively' repudiated by a subsequent jurisprudence long adhered to?

Even if I thought myself wrong in everything I have thus far said, I should still dissent, for the reason that a point of this kind, after it has been properly considered and decided, and the decision adhered to in subsequent cases,, and a jurisprudence thereby established, should stay decided.

PER CURIAM.

Rehearing granted.

MONROE, C. J., and PROVOSTY and DAWKINS, JJ.

All of the issues in this cause having been compromised and settled between the parties, and all of the parties hereto having joined in the request as to the former judgment of this court, rendered on the 3d day of November, 1920, decreeing the defendants and applicants to be the owner of the property in dispute, all as is more fully shown by the joint application of all of the plaintiffs and the defendants, it is therefore ordered, adjudged, and decreed that the former judgment of this court rendered on the 3d day of November, 1920, be, and the same is hereby, reinstated and made final, and the defendants and applicants are decreed to be the owners of the property involved in this litigation, and the costs are ordered paid by defendants, all in accordance with the consent of the parties on file.  