229 So.2d 449 (La.App. 3 Cir. 1969), 2912, Succession of Vincent

Docket Nº:2912.
Citation:229 So.2d 449
Party Name:Succession of Ezra VINCENT. Lou Bertha LABINE, Natural Tutrix of the minor child, Rita Nell Vincent, Plaintiff-Appellant, v. Simon VINCENT, Administrator of the Succession of Ezra Vincent, Defendant- Appellee.
Case Date:December 18, 1969
Court:Court of Appeals of Louisiana

Page 449

229 So.2d 449 (La.App. 3 Cir. 1969)

Succession of Ezra VINCENT.

Lou Bertha LABINE, Natural Tutrix of the minor child, Rita

Nell Vincent, Plaintiff-Appellant,


Simon VINCENT, Administrator of the Succession of Ezra

Vincent, Defendant- Appellee.

No. 2912.

Court of Appeals of Louisiana, Third Circuit.

December 18, 1969

Rehearing Denied Jan. 7, 1970. Writ Refused Feb. 27, 1970.

Page 450

Cox & Cox, by James Cox, Lake Charles, for plaintiff-appellant.

Kaufman, Anderson, Leithead, Scott & Boudreau, by James A. Leithead, Lake Charles, for defendant-appellee.


TATE, Judge.

This is a contest over the estate of Ezra Vincent. His illegitimate daughter, through her tutrix, claims his estate. The trial court dismissed the claim. The tutrix appeals.

The decedent died intestate. He was survived by no spouse, ascendants, nor legitimate descendants. An administration was opened by the decedent's collateral heirs, who inherit from him under Louisiana law to the exclusion of illegitimate children. Louisiana Civil Code Articles 206, 919 (1870). 1 The illegitimate child claiming her father's estate was formally acknowledged by him by notarial act during his lifetime.

Page 451

The illegitimate child contends that she should inherit on the same basis as a legitimate child. She argues that the cited Louisiana inheritance statutes unconstitutionally violate equal protection and due process guarantees, since they deny an illegitimate child the right to inherit solely because of the illegitimacy. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee and Liab. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

Last year in Levy and Glona the United States Supreme Court held that the denial of wrongful death benefits merely because of illegitimacy constitutes an invidious discrimination which violates the due process and equal protection clauses of the United States Constitution. The Louisiana wrongful death statute (Civil Code Article 2315) was invalidated to the extent that it denied illegitimate children or their parents the right to recover on the same basis as the enactment permits where the birth is legitimate.

The appellant relies on reasoning similar to that followed of the Supreme Court of North Dakota in Estate of Jensen, N.Dak., 162 N.W.2d 861 (1968). There, the court invalidated a North Dakota statute which granted inheritance rights to legitimate children but denied them to illegitimates. In so holding, the court states, 162 N.W.2d 878:

'Applying the reasoning in Levy, as no action, conduct, or demeanor of the illegitimate children in the instant case is relevant to their status of illegitimacy, we conclude that the classification for purposes of inheritance contained in (the North Dakota statute making the distinction between legitimate and illegitimate children), which is based on such a statute and which results in illegitimate children being disinherited while their legitimate brothers and sisters inherit, is unreasonable.

'Accordingly, * * *, we have no hesitancy in holding that (such statute) is unconstitutional as an invidious discrimination against illegitimate children in violation of § 1 of the fourteenth amendment of the United States Constitution and § 20 of the North Dakota Constitution. This statute, which punishes innocent children for their parents' transgressions, has no place in our system of government, which has as one of its basic tenets equal protection for all.'

See also R_ _ v. R_ _, Mo., 431 S.W.2d 152 (1968); Storm v. None, 57 Misc.2d 342, 291 N.Y.S.2d 515 (Family Ct., 1968); Note, 43 Tul.L.Rev. 383, 391--92 (1969).

This reasoning is persuasive. Nevertheless, we do not accept the holdings of Levy and Glona as deciding more than that wrongful death enactments create an unreasonable exemption from tort liability by allowing illegitimacy to bar recovery of tort damages otherwise due. The decisions found only that there was no rational basis for assuming that marriage would be discouraged and illegitimacy encouraged by denying recovery for subsequent wrongful deaths.

On the other hand, these decisions did not modify certain basic concepts: A state has great latitude in making classifications, so that differences and distinctions in treatment offend the constitutional guarantees only when the...

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