In re Brown

• Decision Date: 04 November 1907
• Docket Number: 16,746
• Citation: 44 So. 919,120 La. 50
• Court: Louisiana Supreme Court
• Parties: In re BROWN

44 So. 919

120 La. 50

In re BROWN

No. 16,746

Supreme Court of Louisiana

November 4, 1907

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

In the matter of the tutorship of Julia Eleanor Brown. On an appointment of Marion Brown tutrix, Julia M. Brown moved to set the same aside and to be appointed tutrix. From an order appointing the grandmother, Marion Brown appeals. Affirmed.

William Andrew Collins and William Stirling Parkerson, for appellant.

Thomas Donovan Flynn, for appellee.

BREAUX C.J. LAND, J., takes no part, not having heard the argument.

OPINION

BREAUX C.J.

Marion Brown, alleging that she is the mother by adoption of Julia Eleanor Brown, after the death of the latter's father, petitioned the court for an inventory which was accordingly made, and the assets inherited by the minor from her mother and father were put down as worth $ 8,000.

Nothing was said of debts.

The act of adoption of the minor by Marion Brown states that under Act No. 31, p. 79, of the Legislative Session of 1872, she adopts her as her own child, declares in the act that the adopted child shall have all the rights of a legitimate child, and binds herself to provide for and maintain the same as if her own child.

The father, Edgar Boutcher Brown, intervened in the act of adoption and consented thereto. Her mother was dead at this time.

Shortly after this act of adoption Edgar Boutcher Brown died.

Marion Brown was appointed the child's tutrix.

Mrs Julia Munford Brown, the maternal grandmother of the minor, Julia Eleanor Brown, alleging that the minor had been in her charge and care since the death of her mother, Sue Willit Brown (when the child was only four months old), and alleging that she was the mother and only surviving parent of the deceased wife of Edgar Boutcher Brown, and the maternal grandmother of Julia Eleanor Brown, filed a rule to annul and set aside the appointment of Marion Brown as tutrix of Julia Eleanor Brown, also to have it declared that the act of adoption was null and void, and, further, to have it decreed that the petitioner is entitled to the care and custody of the minor child, and asked to be appointed her natural tutrix.

Defendant filed an answer controverting the right claimed by plaintiff in rule.

Our learned brother of the district court, with painstaking care, wrote an interesting opinion, from which we excerpt the following:

"Mrs. Julia M. Brown, her grandmother, and Miss Marion Brown, the paternal aunt, are here engaged in a friendly contest for the tutorship of the minor, Julia Eleanor Brown. All parties appeared in court. Julia is a dear child, about five years of age, and these two good women, with hearts full of love for her, are claiming the privilege of bestowing that love in a true motherly way by rearing the child to noble womanhood.

"It is not always that the orphan's lot is so fortunate, or that the court is so ably assisted in caring for its wards.

"The grandmother, with whitened hair and faltering step, faces the court with all the resolution and firmness of purpose of a much younger woman, ready and anxious to fulfill the precious charge left to her by her deceased daughter. Her heart beats stronger than it was wont to do, because she must live over again her young life with her child, now impersonated in that daughter's daughter. She has a mother's work to do, and she must be busy about it.

"That aunt, younger and more hearty, with a natural love for children, which is implanted in every true woman's breast, asks that she be given the privilege of rearing her loved brother's orphan child.

"What a spectacle for that father and mother to look upon.

"Both applicants must be satisfied for the present with the knowledge that she hath done what she could. It is more than probable that in the natural course of events each one will have an opportunity for doing good in her own way for little Julia."

The learned judge then in the opinion reviews the laws regarding tutorship, and concludes that neither applicant is a tutrix by nature, and, after having reviewed some of the decisions, he recognized the act of adoption as valid, but vacated the appointment of the aunt as tutrix, and appointed the grandmother as legal tutrix to the minor.

The quoted portion of the opinion is highly creditable to the heart of the judge, and his review of the authorities to his study and industry.

The grandmother has a better right:

The adopter, it is true, had the absolute right to adopt the minor, and there is not a word reasonably to be said against the act. She was moved by an entirely proper feeling to rear and take care of her niece.

On the other hand, without the act of adoption, the grandmother was the proper person to appoint as the tutrix.

The grandmother is the only woman who has a right to the tutorship by the effect of the law, and the act of adoption does not afford ground to deny to the grandmother the right so clearly stated in the article of the Code on the subject. It cannot reasonably be contended that there was no ground for the appointment of a tutrix, for the adopter, conceiving that the appointment was necessary, had already applied for and obtained letters of tutorship. She had claimed as natural tutrix as in case of the mother, although the act of adoption had not...