Prieto v. Succession of Prieto

• Decision Date: 13 February 1928
• Docket Number: 28810
• Citation: 115 So. 911,165 La. 710
• Court: Louisiana Supreme Court
• Parties: PRIETO et al. v. SUCCESSION of PRIETO

115 So. 911

165 La. 710

PRIETO et al. v. SUCCESSION of PRIETO

No. 28810

Supreme Court of Louisiana

February 13, 1928

Rehearing Denied March 12, 1928

Appeal from Twenty-Second Judicial District Court, Parish of St Tammany; Prentiss B. Carter, Judge.

Actionby Lucas Prieto and others against the succession of Paul L Prieto, consisting of Martha Gaines Prieto, as surviving widow and as natural tutrix of Peter Paul Prieto, a minor. From the judgment, defendant for herself and as natural tutrix of her minor child appeals.

Amended and affirmed.

Miller & Heintz and Harvey E. Ellis, all of Covington, and Robert S. Ellis, Jr., of Amite, for appellant.

Lewis L. Morgan, of New Orleans, and J. Monroe Simmons, of Covington, for appellees.

BRUNOT, J. THOMPSON, J., takes no part. OVERTON, J. and O'NIELL, C. J., dissent.

OPINION

BRUNOT, J.

Paul L. Prieto and Martha Gaines were married on December 13, 1918, and the issue of the marriage was one son, Peter Paul Prieto, a minor. Paul L. Prieto died intestate December 3, 1926, his succession was opened, Martha Gaines Prieto was confirmed as natural tutrix of the minor, Peter Paul Prieto, and she and the said minor, were, respectively, recognized as the surviving widow in community and the sole heir of the deceased, and, as such, they were sent into possession of his estate by a judgment of the court. Following these proceedings, the parents, brothers, and sisters of the deceased filed a suit wherein they allege that the marriage between Martha Gaines and Paul L. Prieto was bigamous; that Martha Gaines Prieto was legally married to Edward Aprea, who was alive and from whom she was not divorced, when her marriage to Paul L. Prieto was contracted; that at that time Paul L. Prieto well knew the marital status of Martha Gaines Aprea; and, as both of said parties to the contract of marriage were in bad faith, their marriage produced no civil effects, either, as to the surviving widow or to the minor child. The plaintiffs prayed for the nullity of the judgment recognizing Martha Gaines Prieto as widow in community and Peter Paul Prieto as the sole heir of the deceased and sending them into possession of his estate, and for a reservation of their rights, in due course and after proper proceedings had, to be recognized as the sole heirs of the deceased, and, as such, to be sent into possession of his estate.

The defendant filed a rule for bond upon the business partner of the deceased. She also filed two exceptions, one of which is to articles 12 and 13 of the petition and the other is the exception of no right or cause of action. In addition thereto, she filed a plea of estoppel. The rule for bond was recalled, the exceptions and the plea of estoppel were referred to the merits, the answer was filed, the suit was tried, and the court rendered judgment decreeing the nullity of the marriage contracted between Martha Gaines and the decedent Paul L. Prieto, avoiding the judgment recognizing Martha Gaines Prieto as the widow in community, and Peter Paul Prieto as the sole heir of decedent, and reserving to the plaintiffs the right, in due course, and by proper proceedings, to be recognized as decedent's sole heirs and be sent into possession of his estate. From this judgment the defendant, for herself and as natural tutrix of her minor child, appealed.

The judgment does not directly pass upon defendant's exceptions and plea of estoppel, but its effect is to overrule them. The exception of no right or cause of action and the plea of estoppel are based upon the theory that decedent could not, during his lifetime, have attacked his marriage to Martha Gaines as bigamous; therefore the plaintiffs, as his privies, are also estopped from doing so. A bigamous marriage is an absolutenullity. It is expressly forbidden by C. C. art. 93 (Merrick). It cannot produce civil effects either as to the parties to the contract or as to the children born of such a marriage, and it can be attacked by any person interested, when it is sought to be used by another claiming any benefit under it. C. C. art. 113 (Merrick). This right is subject only to the provisions of C. C. art. 114 (Merrick), which follows:

"But in all cases where, conformably to the preceding article, the action of nullity may be instituted by any person having a pecuniary interest, it cannot be brought during the life of the two married persons by the collateral relations or by the children born of a previous marriage, until they have acquired an actual interest."

This suit was brought after the death of one of the married persons, by plaintiffs, who allege themselves to be the sole heirs of the deceased and entitled to inherit his estate. Defendant, in support of her contention, has cited Summerlin v. Livingston, 15 La.Ann. 519, and Jones v. Jones, 119 La. 677, 44 So. 429. The Jones Case announces a principle which applies to the turpitude of one, through whom another claims, whose acts were lawful when they were committed. This principle is generally recognized. In the Summerlin Case it was contended that defendant was estopped from availing himself of the alleged radical defect of the marriage between himself and the deceased. In that case the court said, quoting from the syllabus:

"Where a party legally married, before the dissolution of such marriage contracts another, the latter contract is absolutely null, and is not susceptible of confirmation or ratification whether express or implied. Nor is it necessary that a direct action be instituted for the purpose of setting it aside; its nullity may be demanded by way of exception or defense."

There is no intimation in the Summerlin Case that either party to such a contract as was therein considered, or their privies were estopped from attacking it by direct action, by exception, or by way of defense. This disposes of defendant's exception of no cause of action and of her plea of estoppel. The exception to articles 12 and 13 of the petition is without merit. Article 12 is, substantially, a recital of the facts upon which the alleged bad faith of both parties to the marriage is based and article 13 merely avers that Martha Prieto is the sister of the man who is under indictment for the killing of Paul L. Prieto. The averments in ...