LABINE v. VINCENT (1971)
Ezra Vincent died intestate, survived by only collateral relations and an illegitimate daughter, whose guardian (appellant) sued to have her declared Vincent’s sole heir. The trial court ruled that under Louisiana law the collateral relations took the decedent’s property to the exclusion of the daughter, who had been acknowledged by her father but not legitimated. The Louisiana Court of Appeal affirmed. The State Supreme Court denied certiorari. Appellant, relying on Levy v. Louisiana, 391 U.S. 68 , contends that Louisiana’s intestate succession laws that bar an illegitimate child from sharing equally with legitimate children in the father’s estate constitute an invidious discrimination violative of the Due Process and Equal Protection Clauses of the Constitution. Held: The Louisiana statutory intestate succession scheme is within the State’s power to establish rules for the protection and strengthening of family life and for the disposition of property, and in view of various statutory alternatives, none of which was chosen by Vincent, did not (unlike the situation in Levy) constitute an insurmountable barrier to illegitimate children. Pp. 535-540.
255 La. 480, 231 So.2d 395, affirmed. See: 229 So.2d 449.
BLACK, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. HARLAN, J., filed a concurring opinion, post, p. 540. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined, post, p. 541.
James J. Cox argued the cause and filed a brief for appellant.
James A. Leithead argued the cause for appellee. With him on the brief was Norman F. Anderson.
Briefs of amici curiae urging reversal were filed by Harry D. Krause, Norman Dorsen, and Melvin L. Wulf for the American Civil Liberties Union, and by Jonathan Weiss and David Gilman for the Center on Social Welfare Policy and Law. [401 U.S. 532, 533]
Briefs of amici curiae urging affirmance were filed by Jack P. F. Gremillion, Attorney General, for the State of Louisiana, and by A. Leon Hebert and E. Drew McKinnis for the Buras Heirs et al.
In this appeal the guardian (tutrix) of an illegitimate minor child attacks the constitutionality of Louisiana’s laws that bar an illegitimate child from sharing equally with legitimates in the estate of their father who had publicly acknowledged the child, but who died without a will. To understand appellant’s constitutional arguments and our decision, it is necessary briefly to review the facts giving rise to this dispute. On March 15, 1962, a baby girl, Rita Vincent, was born to Lou Bertha Patterson (now Lou Bertha Labine) in Calcasieu Parish, Louisiana. On May 10, 1962, Lou Bertha Patterson and Ezra Vincent, as authorized by Louisiana law, jointly executed before a notary a Louisiana State Board of Health form acknowledging that Ezra Vincent was the “natural father” of Rita Vincent. 1 This public acknowledgment of parentage did not, under Louisiana law, give the child a legal right to share equally with legitimate children in the parent’s estate but it did give her a right to claim support from her parents or their heirs. The acknowledgment also gave the child the capacity under Louisiana law to be a limited beneficiary under her father’s will in the event he left a will naming her, which he did not do here.
Ezra Vincent died intestate, that is, without a will, on September 16, 1968, in Rapides Parish, Louisiana, leaving substantial property within the State, but no will to direct its distribution. Appellant, as the guardian of Rita Vincent, petitioned in state court for the appointment of an administrator for the father’s estate; for [401 U.S. 532, 534] a declaration that Rita Vincent is the sole heir of Ezra Vincent; and for an order directing the administrator to pay support and maintenance for the child. In the alternative, appellant sought a declaration that the child was entitled to support and maintenance of $150 per month under a Louisiana child support law. 2
The administrator of the succession of Ezra Vincent answered the petition claiming that Vincent’s relatives were entitled to the whole estate. He relied for the claim upon two articles of the Louisiana Civil Code of 1870: Art. 206, which provides:
“Illegitimate children, though duly acknowledged, can not claim the rights of legitimate children. . . .”
and Art. 919, which provides:
“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.”
The court ruled that the relatives of the father were his collateral relations and that under Louisiana’s laws of intestate succession took his property to the exclusion of acknowledged, but not legitimated, illegitimate children. The court, therefore, dismissed with costs the guardian mother’s petition to recognize the child as an heir. The court also ruled that in view of Social Security payments of $60 per month and Veterans Administration payments of $40 per month available for the support of the child, the guardian for the child was not entitled to support or maintenance from the succession of Ezra Vincent. 3 [401 U.S. 532, 535] The Louisiana Court of Appeal, Third Circuit, affirmed and the Supreme Court of Louisiana denied a petition for writ of certiorari. The child’s guardian appealed and we noted probable jurisdiction. 400 U.S. 817 (1970).
In this Court appellant argues that Louisiana’s statutory scheme for intestate succession that bars this illegitimate child from sharing in her father’s estate constitutes an invidious discrimination against illegitimate children that cannot stand under the Due Process and Equal Protection Clauses of the Constitution. Much reliance is placed upon the Court’s decisions in Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73 (1968). For the reasons set out below, we find appellant’s reliance on those cases misplaced, and we decline to extend the rationale of those cases where it does not apply. Accordingly, we affirm the decision below.
In Levy the Court held that Louisiana could not consistently with the Equal Protection Clause bar an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The cause of action alleged in Levy was in tort. It was undisputed that Louisiana had created a statutory tort 4 and had provided for the survival of the deceased’s cause of action, 5 so that a large class of persons injured by the tort could recover damages in compensation for their injury. Under those circumstances the Court held that the State could not totally exclude from [401 U.S. 532, 536] the class of potential plaintiffs illegitimate children who were unquestionably injured by the tort that took their mother’s life. Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring. 6
The people of Louisiana, through their legislature have carefully regulated many of the property rights incident to family life. Louisiana law prescribes certain formalities requisite to the contracting of marriage. 7 Once marriage is contracted there, husbands have obligations to their wives. 8 Fathers have obligations to their children. 9 Should the children prosper while the parents fall upon hard times, children have a statutory obligation to support their parents. 10 To further strengthen and preserve family ties, Louisiana regulates the disposition of property upon the death of a family man. The surviving spouse is entitled to an interest in the deceased spouse’s estate. 11 Legitimate children have a right of forced heirship in their father’s estate and can even retrieve property transferred by their father during his lifetime in reduction of their rightful interests. 12 [401 U.S. 532, 537]
98 SO. 2D 181 (1957)
233 LA. 764
Succession of Mrs. Sophie Jones Arnouil ECK.
Supreme Court of Louisiana.
November 12, 1957.
*182 Byrnes & Wallace, New Orleans, for appellant.
Robert J. Oster, New Orleans, for defendant-appellee.
This is an appeal from the trial court’s judgment on rehearing upholding the validity of the last will and testament of Mrs. Sophie Jones Arnouil Eck, who died on December 19, 1956.
The deceased executed a nuncupative will by public act on January 11, 1951. On the day of her death, December 19, 1956, she executed the following will under the provisions of Act 66 of 1952, LSA-R.S. 9:2442 et seq.:
“New Orleans, La. December 19, 1956
“I, Mrs. Sophie Jones Arnouil Eck, being of sound mind make this my last will and testament, hereby revoking all wills or codicils heretofore made by me.
“Upon my death I leave everything I own to George T. Micas (Theo), my nephew.
“I name Robert J. Oster as Attorney to handle all legal matters in connection with my estate.
“Signed and declared by the testator to be her will and in the presence of each other the testator, notary and witnesses signed their names.
“/s/ S. Arnouil Eck
“Signed and declared by the testator above named Mrs. Sophie Jones Arnouil Eck, in our presence to be her last will and testament, and in the presence of the testator and each other we have hereunto signed and subscribed our names on this 19th day of December, 1956.
/s/ L. M. JansenNurse /s/ Mamie E. Micas /s/ Robert J. Oster N.P.”
After Mrs. Eck’s death, her nephew, George T. Micas, petitioned the Civil District Court for the Parish of Orleans for probate of her will of December 19, 1956 and administration of her estate. The inventory of the succession showed a value of $33,301.58.
Following the probate of the will and the taking of the inventory, decedent’s niece, Laura J. Whittaker, wife of Albert Dietzman, filed an opposition to the probate of the will asking that it be recalled and rescinded because of non-compliance with Act 66 of 1952, LSA-R.S. 9:2442 et seq. and because of the incompetency of one of the witnesses. She prayed for probate of the nuncupative will of January 11, 1951, in which she was named the executrix and bequeathed three-fourths of all the property of which the deceased died possessed.
In reasons for judgment, the trial judge held that the will of 1956, supra, failed to comply with the mandatory provisions of the statute and was invalid under Succession of Pope, 230 La. 1049, 89 So. 2d 894. He set aside the probate but did not sign his judgment. A rehearing was granted, *183 and the trial court reversed itself for reasons we will later set forth.
On appeal, it is urged by appellant, Mrs. Dietzman, that:
Act 66 of 1952, LSA-R.S. 9:2442 et seq., provides:
“In addition to the methods provided in the Louisiana Civil Code, a will shall be valid if in writing (whether type-written, printed, mimeographed, or written in any other manner), and signed by the testator in the presence of a notary public and two witnesses in the following manner: “(1) Testator. In the presence of the notary and both witnesses the testator shall signify to them that the instrument is his will and shall sign each separate sheet of the instrument. “(2) Notary Public and witnesses. The notary and both witnesses must sign at the end of the will.
“(a) In the presence of the testator, and
“(b) In the presence of each other.
“(3) The foregoing facts shall be evidenced in writing above the signatures of the notary public and witnesses and the testator at the end of the will. Such declaration may be in the following form or a form substantially similar thereto: “(a) Signed (on each page) and declared by testator above named, in our presence to be his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names on this _____ day of _____ 19.”
It is contended by appellant that the will of 1956, supra, is null and void for the reason that the notary and witnesses did not sign along with the testator the following statement:
“Signed and declared by the testator to be her will and in the presence of each other the testator, notary and witnesses signed their names.”
It is further argued that the above declaration does not state that the testator declared in the presence of the notary and the witnesses that it was her last will, and that the absence of this essential declaration is sufficient to nullify the will.
It is also contended by appellant that the final declaration
“Signed and declared by the testator above named * * * in our presence to be her last will and testament, and in the presence of the testator and each other we have hereunto signed and subscribed our names * * *”
was not signed or subscribed by the testator, and that the face of the document shows that testimony would be required to show that the dispositive portions of the will, together with both superscriptions, were executed and, particularly, signed at one and the same time so as to fulfill the requirements of the statute.
Still another ground alleged for the invalidity of the will is the fact that the signature of the testator does not appear at the literal or physical end of the will.
The trial judge properly interpreted LSA-R.S. 9:2442 et seq. We believe that his reasons for judgment after rehearing, which we quote below, ably answer appellant’s contentions.
“The will under attack reveals that immediately at the end of the will proper or *184 the dispositive portion, appears the attestation clause; then the signature of the testator. Following the signature of the testator is another attestation clause, under which appears the signature of the witnesses and notary only. The testator did not sign again. The second attestation clause, following the signature of the testator, is substantially the same as the first attestation clause, except that the second attestation clause contains the date, to-wit, December 19, 1956.
“R.S. 9:2442 provides that the notary and witnesses must sign at the end of the will in the presence of the testator, and in the presence of each other; that the foregoing facts shall be evidenced in writing above the signatures of the notary and witnesses and the testator at the end of the will, and such declaration may be in substantially the form recited in the statute.
“The only question presented is whether or not the signature of the testator and the witnesses and notary appear below the attestation clause.
“As was explained in the case of In re Mackris’ Estate [Sur.], 124 N.Y.S.2d 891, the purpose of a statutory requirement that the testator and subscribing witnesses sign `at the end’ of the will is to prevent fraudulent additions to a will before or after its execution; and that the early jurisprudence gave a strict construction to the statute, but later jurisprudence accepted a less rigid approach, seeking only to apply the statute in the light of its intended purpose.
“As was further said in In re Mackris’ Estate, supra, `the rule that the statute is complied with when the subscriptions are not followed by matter “essential to the validity of the will” is of broad scope, and has been liberally applied. Moreover, courts are [more inclined] to find substantial compliance when the mischief against which the statute was enacted is not present. * * * The fact that the subscriptions of testator and the witnesses are not contiguous does not affect the validity of the will where both appear after the end of the will.’
“The substantive definition of the term `end’ refers to that place on the will where the dispositive provisions terminate, the dispositive provisions being those relating to the testamentary dispositions, the naming of Executor, et cetera.
“From the above, it seems clear that the signature of the witnesses and the testator are considered to be at the end of the will when there is no dispositive matter intervening.
“The attestation clause is a certificate which certifies the facts and circumstances attending the execution of the will. All that our stature requires is that the signature of the testator, notary and witnesses be affixed in the presence of each other, and must appear under the attestation clause.
“Here, we have two attestation clauses. The first one appears immediately at the end of the will proper, after which appears the signature of the testator. Then follows another attestation clause and the signatures of the witnesses and the notary. All signatures, therefore, are under an attestation clause or, as required by the statute, an attestation clause is above all signatures, with no dispositive matter intervening.
“Where a statute provides that the signatures of the testator, notary and witnesses must be below the attestation clause, and there are two attestation clauses, one immediately following the testamentary dispositions, following which appears the testator’s signature, and another attestation clause following the testator’s signature, below which appears the signatures of the witnesses and the notary, the requirement of statute has been complied with. So long as all dispositive portions of the will are above all signatures and the attestation clause, and all signatures are *185 below the attestation clauses, and the signature of the testator is above all other signatures, indicating that the testator signed first, the will is valid.” (Italics ours.) See 28 Tulane Law Review 288; In re Parkman’s Estate, 3 Misc.2d 1014, 156 N.Y.S.2d 22.
Mrs. Mamie E. Micas, wife of the universal legatee, witnessed the instrument herein involved. There are no provisions in Act 66 of 1952, LSA-R.S. 9:2442, with respect to who may witness a will drawn under its provisions. Under such circumstances, the substantive law of Louisiana applies. Mrs. Micas did not fall within any of the incapacities set forth in the Revised Civil Code. LSA-C.C. arts. 1591, 1592.
When the intent of the testatrix is clearly manifest and on a due consideration of the evidence by this Court, the law and the evidence in will cases should not be confined in the Bastille of a technical judicial construction.
For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.
FOURNET, C. J., absent.
Separate property includes 1) property owned before marriage; 2) property inherited by one spouse during marriage; or 3) property given to only one of the spouses during marriage.
Community property is property acquired by either of the spouses during the marriage unless the property is separate property as described above or unless the spouses entered into a pre-nuptial agreement (called a marriage contract in LA) prior to the marriage. Generally, each spouse owns half of the community property during the marriage.