
    No. 8394.
    Succession of Mary Ann Berfuse.
    The Civil District Court is legally open ftom the third of July to November, for probate matters; a judgment rendered in such matters is of full force and effect, and an appeal therefrom, granted on motion legally obtained.
    It is inconsistent to ask, in a petition, to be recognized as sole heir, accepting a succession purely and simply, then afterwards, by opposition to tho Public Administrator, pray to be appointed administratrix; such opposition and prayer operate as a waiver of the first demand.
    The interven or has failed to establish her identity, hence, her claim to administer, in preference to the Public Administrator, must fall.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.
    
      Julian A. Seghers, for Interveners and Appellants :
    The Public Administrator has no right to claim to be appointed in a succession when there are heirs present in the State.
    In default of legitimate descendants, the natural children are the legal heirs of their mother, and no one can contest their right to her succession, unless he has an interest in so doing. •
    The legal acknowledgment of natural children, and their judicial acknowledgment, decreed by judgment of Court, are of equal dignity and are both due acknowledgments, under the law, as to their effects.
    
      Breaux cG Hall, for Public Administrator, Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Pociié, J.

This appeal is taken from a judgment appointing the Public Administrator, P. S. Wiltz, administrator of the succession.

The grounds urged for the dismissal of. the appeal are, that it was obtained out of term time, not on petition, and that no citation of appeal was issued.

The record shows that the judgment was rendered on September 27th, 1881, and signed on the 8th of October following, and that the order of appeal was granted, on appellants’ motion, on the 18th of the same month.

Appellee contends that the terms of the Civil District Court of the Parish of Orleans, are fixed and regulated by Section 1985 of the Revised Statutes, fixing the terms of the District Courts for the Parish of Orleans, established under the Constitution of 1868; under the provisions of which law, said terms began on the first Monday of November, and ended on the third of July of each year, and hence he argues that the appeal in this case was granted out of term-time, and that it should have been obtained by petition and followed by citation of appeal.

Appellants, on the other hand, urged that under the powers conferred to it "by Art. 132 of tlie present Constitution, the Civil District Court for the Parish of Orleans, has fixed its own terms; that under the rules of said Court, its term for general matters begins on the first Monday of November and ends on the third of July of each year, and that from the third of July to the first Monday of November, of each year, Court shall be open, for certain enumerated purposes, among which is included the trial of all probate matters. Hence, they contend that the judgment appealed from was rendered at a term of Court legally established for tlm purpose of such a judgment, and that the order of appeal was properly and legally granted on their motion x>resented at the term at which the judgment was rendered.

All the courts created by the Constitution of 18G3, having been abolished by the present Constitution, it follows, as a logical proposition, that all laws xiassed under the former Constitution, specially intended for the regulation of courts created thereunder, have, of necessity, been, abrogated, and have disappeared with the courts for which they had been enacted. The object and the subject matter of the law having ceased to exist, the law itself has perished. Hence, wre are clear that Section 1985 of the Revised Statutes does not regulate the terms of the Civil District Court for the Parish of Orleans, and that under the present Constitution, such terms have been projmrly and legally fixed by said Court.

We, therefore, conclude that in Scx>tombor and October last that tribunal was legally open for the trial of probate matters; that the judgment appealed from was rendered at a term of Court legally established for the purpose of such judgments, and that the order of aj>x>eal was legally obtained at the same term.

Appellee’s theory, under which the Court was ojien for the purpose of rendering a valid judgment in his favor, but not for i he pmpose of granting an order of appeal therefrom, on motion, is glaringly illogical and absolutely untenable. 21 A. 733, State ex rel. New Orleans vs. Judge, etc.

The motion to dismiss this apjieal is, therefore, overruled at apx>ellants" costs.

On the Merits.

Fenner, J.

Christina and Mary Berfuse, alleging themselves to be illegitimate children of deceased, and alleging that she died intestate leaving no legitimate heirs, filed a petition praying to be recognized as-her sole heirs, accepting her succession purely and simply, and to be put in possession thereof. This petition was accompanied by certain-affidavits tending to establish the facts alleged.

No action appears ever to have been taken on this petition. Subsequently, P. S. Wiltz, Public Administrator, filed liis petition representing that deceased left no surviving husband or heir, present or represented in the State, and died intestate, and praying to be appointed administrator of her estate. Under proper order of court, the application was published according to law. Pending the legal delay, Mary and Christina Berfuse, claiming to be natural children duly acknowledged, and, as such, heirs of the deceased, filed an opposition to the application of the Public Administrator, and prayed that it be rejected, and that Mary should be appointed administratrix of the succession.

This opposition, and the prayer thereof, was inconsistent with their prior petition to-be put into possession as heirs, and operated a waiver of that demand. It left before the Court a simple contest for administration between the Public Administrator, on the one hand, and Mary Berfuse on the other.

After trial, judgment was rendered dimissing the opposition, and appointing the Public Administrator,- from which judgment, opponents have appealed.

The record contains no note of evidence and no copy of the testimony, and we have nothing before us except an agreed statement of facts, which is as follows :

Opponents’ witnesses proved, that they had known Mary Ann - Berfuse, one of the opponents, for many years; that they always considered her as the daughter of deceased, having known her as a member of her household, since early childhood. ”

One witness testified that he was present at thefétede baptéme, held in honor of opponent, Mary Ann Berfuse; that he passed the day at the house and partook of the good cheer provided for the occasion.

That during the day, a party of persons left the house, bearing the infant, and avowedly for the purpose of having it baptised. That said party returned with the infant.”
That neither the witness nor the mother, the deceased, accompanied said party.
That the deceased was employed during the day in preparing the festival.”

We can consider nothing but the above statement. We are asked to consider the affidavits attached to the petition for putting in possession.

They would clearly have been inadmissible, as evidence, except by consent. There is no proof of such consent, and none that they were ever even offered in evidence.

We find attached to the record, at the end, a certificate of baptism, in the original, which, by the endorsement on it, appears only to have been filed in the lower court on the day the appeal was taken. By whose authority it was filed, and how it comes to be thus pasted on the record, is not explained, and we can discover no possible authority for taking cognizance of it, especially as the counsel for the administrator objects thereto.

Unless the opponents proved their heirship, the judgment of the lower court was cleanly correct.

Clearly the statement of facts does not prove the heirship. It does not prove acknowledgment by the alleged mother, in any manner authorized by law; nor does it prove the maternal descent, to do which, ojiponeut was bound to show that she was “identically the same person as the child whom the mother brought forth.” C. C. 212, (230).

This involves, first, proof of the accouchement and the bringing forth of the child; and, second, proof of the identity of the claimant with the child so brought forth. 5 Demolombe, Nos. 500 and 501; 1 Mourlon, p. 493.

There is a complete lack of such proof.

Opponents may have rights which they may vindicate in other proceedings and on proper evidence. But, upon the issue and evidence presented by this appeal, it is clear we cannot say the judgment pronounced is erroneous.

Judgment affirmed at appellants’ costs.  