Hibbert v. Mudd

• Decision Date: 02 June 1966
• Docket Number: No. 1704,1704
• Citation: 187 So.2d 503
• Parties: R. E. HIBBERT, Plaintiff, v. William MUDD et al., Defendants and Appellees, State of Louisiana, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 503

187 So.2d 503

R. E. HIBBERT, Plaintiff, v. William MUDD et al., Defendants and Appellees State of Louisiana, Defendant and Appellant.

No. 1704.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1966.

Rehearing Denied June 29, 1966.

Jack P. F. Gremillion, Atty. Gen., John L. Madden, Asst. Atty. Gen., Baton Rouge, Sidney P. Landry, Jr., Sp. Counsel to Atty. Gen., Lafayette, for defendant-appellant.

Domengeaux & Wright, by D. Mark Bienvenu, Lafayette, for defendants-appellees.

Bailey & Mouton, by W. C. Hollier, Lafayette, for plaintiff-appellee.

Before TATE, SAVOY and CULPEPPER, J.

CULPEPPER, Judge.

This is a concursus proceeding instituted by plaintiff, R. E. Hibbert, as owner of an oil, gas and mineral lease granted to him in 1959 by Edna Mudd Anderson and under which lease gas and condensate are now being produced. Impleaded as defendants having conflicting claims to royalties payable under the lease are (1) alleged natural brothers and sisters, and their descendants, (hereinafter referred to as the 'Mudd group') of the lessor, who died intestate in 1961, and (2) the State of Louisiana, which claims there are no heirs and that it is entitled to the property by escheat. The trial judge granted a motion for summary judgment recognizing the Mudd group as owners of the property. The State appealed.

At the outset, we will state the law on summary judgments. LSA-C.C.P. Article 966 provides for summary judgment 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.' Our jurisprudence has already established several principles under this statute. In passing on a motion for summary judgment, the court should not attempt to determine any factual issue, but rather should determine only whether there is a genuine issue of material fact. The burden is on the mover to show there is no genuine issue of material fact and all doubts must be resolved against the granting of a summary judgment. Kay v. Carter, et al., 243 La. 1095, 150 So.2d 27; Aymond v. Missouri-Pacific Railroad Company, 179 So.2d 461 (3rd Cir. La.App.1965); Acadia-Vermilion Rice Irrigating Company, Inc. v. Broussard, 185 So.2d 908 (3rd Cir. La.App., 1966); Brown v. B & G Crane Service, Inc., 172 So.2d 708 (4th Cir.).

The applicable law governing inheritance between natural brothers and sisters is succinctly set forth in 7 Loyola Law Review 123--124 (1954), with citation of authority for the matters at issue here added by us in parentheses:

'The natural brothers and sisters of the deceased, or their descendants, inherit from the natural child whose parents predeceased him. The requisites necessary for such inheritance are: (1) the deceased natural child must have left no descendants, legitimate or acknowledged; (2) the natural parents of the deceased must have predeceased him; and the natural parents cannot be considered civilly dead in cases in which they are barred from inheriting by virtue of their failure to acknowledge their natural children in accordance with (Civil Code) article 203; (3) the natural child deceased must have left no surviving spouse, as the wife inherits to the exclusion of all natural relations of the husband, and the husband inherits to the exclusion of all of the natural relations of the wife except her duly acknowledged illegitimate children; and (4) there must have been acknowledgment, either formal or informal, by the common parents of not only the natural brothers and sisters but also the natural child deceased. (Succession of Gravier, 125 La. 733, 51 So. 704 (1910); State v. DeLavallade, 215 La. 123, 39 So.2d 845 (1949); Dupre v. Caruthers, 6 La.Ann. 156 (1851); Bourriaque v. Charles, 107 La. 217, 31 So. 757 (1902)) Brothers and sisters of the half-blood have the same right to claim the succession as those of the whole blood. (Lange v. Richoux, 6 La. 560 (1834); Succession of Bonner, 192 La. 299, 187 So . 801 (1939).) * * * Naturally no rights of inheritance exist in cases in which either the surviving or the deceased natural brother or sister could not be acknowledged under the law. Thus the natural brothers and sisters could not inherit from their deceased natural sister who was an adulterous bastard and hence barred from being acknowledged.'

Considering these requisites in the order listed, there is no issue as to the first three, i.e.: (1) the deceased natural child, Edna Mudd Anderson, left no descendants; (2) her natural father, Frank Mudd, predeceased her and her natural mother, Agnes Sinclair, survived her, but neither ever formally acknowledged her in accordance with LSA-C.C. Article 203 and hence neither could inherit from her; (3) she left no surviving spouse, her husband, Louis Anderson, having predeceased her. But, the State contends there is a genuine issue of material fact as to requisite (4) listed above, i .e., whether there was ever as informal acknowledgment by the common parents of these natural brothers and sisters. The State also contends, and plaintiff's petition alleges, that the natural father was a white person and the natural mother a person of color, a Negro, and hence a marriage between them was prohibited by LSA-C.C. Article 94; that, therefore, no acknowledgment was possible under LSA-C.C. Article 204 which provides:

'Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception; however, such acknowledgment may be made if the parents should contract a legal marriage with each other.'

Based on the pleadings, affidavits and other evidence in the record, the trial judge found there was no genuine issue as to the fact that there was an informal acknowledgment by Agnes Sinclair of her natural children. He recognized there was a genuine issue as to whether the union between Frank Mudd and Agnes Sinclair was miscegenous but found this issue not material, i.e., that even if the union was miscegenous the parents could acknowledge their children. The case relied on by the district judge was Goins v. Gates, 93 So.2d 307 (1st Cir. La.App.1957, writs refused). This case will be discussed in more detail hereinafter.

We find it unnecessary to discuss the State's contention that there is a genuine issue of fact as to whether these natural children were ever informally acknowledged by their common parent, Agnes Sinclair. We have concluded, as the trial judge did, that there is a genuine issue as to whether Frank Mudd was a white person and Agnes Sinclair a Negro. Unlike the trial judge, we think this issue is also material. We have concluded that if the union was miscegenous, no acknowledgment of the children was possible. We are not bound by the Goins case, rendered by our esteemed brethren of the First Circuit Court of Appeal, but we are bound by LSA-C.C. Article 204 and a long line of jurisprudence from our Supreme Court, holding, in the language of Article 204, that '(s)uch acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception;'.

Typical of the many cases in this line of jurisprudence is Succession of Davis, 126 La. 178, 52 So. 266 (1910). There, a natural child sought to inherit from his mother on the grounds of informal acknowledgment. The facts showed that this child was born in about 1865 of a union between a free white man and a woman of color, a slave. At the time of conception Article 182 of the Civil Code of 1825 prohibited marriage between free persons and slaves and between free white persons and free persons of color. The argument was made that because the Civil Code of 1870 abolished all distinctions between persons on account of race, color or previous conditions of servitude, necessarily Article 204 of the Civil Code of 1870 did not intend to prevent acknowledgment of children whose parents were, because of racial differences, incapable of contracting marriage at the time of conception. The court rejected this argument, holding:

'Article 222 of the Code of 1825, prohibiting the acknowledgment of children produced from an adulterous or incestuous connection, was broadened so as to read:

"Art. 204. Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of the conception.' 'Hence, under the plain letter of the Civil Code of 1870, there is only one class of illegitimate children that can be acknowledged, namely, the issue of persons capable of contracting marriage at the time of conception. Such children are properly called 'natural,' a species of the class, 'illegitimate,' and the only kind that can be legitimated.'

In Succession of Davis, it was also argued (and this is the basic holding of the Goins case) that Act No. 68 of 1870 (now LSA-R.S. 9:391) allowing natural fathers and mothers to Legitimate their children by notarial act, provided there existed at the time of conception no other legal impediment to the marriage except those resulting from color or slavery, was intended to remove the bar against acknowledgment of miscegenous children. The court likewise rejected this argument holding:

'Act No. 68, p. 96, of 1870, providing for the legitimation of natural children by notarial act, was intended to remove the bar of incapacity of color or servitude at the time of conception, provided that the parent make the required declarations before a notary public and two witnesses. Civ.Code, art. 200. Act 210, p. 278, of 1868, is a similar statute as to invalid marriages and the legitimation of the children thereof. Both acts are conditioned on the parents making the requisite declarations in the manner and form prescribed by the statute.

'The mother of the petitioner did not avail herself of the benefit of either validating statute. Hence the law prohibiting the acknowledgment of children whose...