65 So.2d 783 (La. 1953), 40873, Succession of Pizzillo

Docket Nº:40873.
Citation:65 So.2d 783, 223 La. 328
Party Name:Succession of PIZZILLO.
Case Date:April 27, 1953
Court:Supreme Court of Louisiana
 
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Page 783

65 So.2d 783 (La. 1953)

223 La. 328

Succession of PIZZILLO.

No. 40873.

Supreme Court of Louisiana.

April 27, 1953

Rehearing Denied June 1, 1953.

[223 La. 331]

Page 784

Ashton L. Stewart and Landry & Landry, Baton Rouge, for appellant.

Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellee.

Page 785

McCALEB, Justice.

The Succession of Anthony J. Pizzillo was opened in the Nineteenth Judicial District Court for the Parish of East Baton Rouge on the petition of appellant, Mrs. Ruby Ahrend Pizzillo, surviving spouse of decedent, who made application for letters of administration. In due course, her application was opposed by appellee, Mrs. Anna Belle Pizzillo Saizan, who alleging that she is the adopted daughter of the decedent, claimed the right of appointment as his sole beneficiary heir. Appellant, the widow by a second marriage, denied that appellee was legally adopted asserting that the act of adoption was void in that it did not conform [223 La. 332] to the adoption statute in force at the time of its execution.

The contest thereafter proceeded to trial on this single issue, it being stipulated that, if the adoption is valid, appellee is the preferred applicant under Article 1121 of the LSA-Civil Code. After a hearing, the judge upheld the act of adoption. Wherefore this appeal.

The facts are that appellee was born, out of wedlock, on April 16, 1928 to one Vira Clements at Kings Daughters Home in Natchez, Mississippi. Shortly after her birth, she was entrusted by the Home to the custody of decedent and his first wife, who were residents of East Baton Rouge Parish. On March 1, 1930, decedent and his first wife, whom he later divorced, executed, in East Baton Rouge Parish, a notarial act of adoption of the child and, on March 7, 1930, Kings Daughters Home formally consented thereto. However, the act was not signed by either the natural father or mother. The natural father was unidentified but the mother resided in Natchez and was known to Kings Daughters Home.

Appellant contends that the adoption is an absolute nullity because the act did not contain the written consent of the known natural parent or parents as required by Act 31 of 1872, as amended by Act 48 of 1924, the applicable law at the time it was confected. And it is further maintained that the consent given by Kings Daughters Home to the adoption of appellee was ineffectual for the reason that the provisions of [223 La. 333] Act 48 of 1924, vesting charitable institutions with such power, applied only in cases where the child was an abandoned child or a foundling and that appellee could not have been so classified within the meaning of the law.

Contra, appellee asserts that the signature of her natural mother was unnecessary as she was either an abandoned child or a foundling and, accordingly, the consent of Kings Daughters Home to her adoption sufficed under Act 48 of 1924. Further, she proclaims that, even if there were irregularities or insufficiencies in the notarial act, they were cured by Section 13 of Act 46 of 1932 which confirmed, approved and validated all adoptions made under prior laws.

Being of the opinion that the second contention of appellee is well founded, it would be inutile for us to decide whether the act of adoption was in strict conformance with the provisions of Act 31 of 1872, as amended by Act 48 of 1924, under which adoptions were...

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