Succession of D'Asaro

• Decision Date: 15 July 1964
• Docket Number: No. 1476,1476
• Citation: Succession of D'Asaro, 167 So.2d 391 (La. App. 1964)
• Parties: Succession of Mrs. Claudia Irene MARQUETTE, Widow of Steve D'ASARO.
• Court: Court of Appeal of Louisiana

Page 391

167 So.2d 391

Succession of Mrs. Claudia Irene MARQUETTE, Widow of Steve D'ASARO.

No. 1476.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1964.

Rehearing Denied Oct. 7, 1964.

Edward J. Villere, New Orleans, for Mrs. Lena Marquette Fernandez, appellant.

Charles E. McHale, Jr., New Orleans, for Steve M. D'Asaro and A. Charles Koch, appellees.

Before McBRIDE, SAMUEL and HALL, JJ.

McBRIDE, Judge.

We are confronted with the question whether an act of adoption of a major by a major (LSA-R.S. 9:461, as amended by Act No. 514 of 1952) not registered with the Clerk of Court of the parish in which the act was executed, in accordance with the literal terms of paragraph (2) of the above statute, until after the death of the adopter is valid.

Mrs. Claudia Irene Marquette, widow of Steve D'Asaro, died intestate in New Orleans, December 10, 1963, and her succession proceedings were commenced in the Civil District Court for the Parish of Orleans; decedent's sister, Mrs. Lena Marquette Fernandez, applied for appointment as administratrix, which application was opposed by Steve M. D'Asaro (born Steve Whidden, son of Mrs. Lena Marquette Fernandez from a former marriage) who claimed that he was the adopted son and sole heir of decedent and as such is entitled to be administrator. He prayed that his nominee (Koch) be so appointed. (See LSA-C.C.P. art. 3098, par. (2).) Mrs. Fernandez interposed an exception of no right of action to D'Asaro's opposition and to his prayer for Koch's appointment, grounded on the theory that decedent never legally adopted Steve M. D'Asaro since the act of adoption had not been registered in accordance with LSA-R.S. 9:461, as amended, until after the death of the adopter.

The trial judge overruled said exception and dismissed the application of Mrs. Fernandez for appointment, from which judgment she has perfected the appeal now being considered.

Per authentic notarial act on May 12, 1961, before John A. Sanchez, Jr., Notary Public for the Parish of Jefferson, Mrs. Claudia Marquette, widow of Steve D'Asaro, of the full age and a resident of the Parish of Orleans, purported to adopt Steve Whidden, her nephew, who was also of the full age and a resident of the Parish of Orleans 'as though he were her child'; in the act Whidden consented to his adoption and declared 'he wishes and by these presents does change his name to Steve D'Asaro.' See LSA-R.S. 9:462. The act was not registered anywhere until the early part of 1963 when an attorney representing D'Asaro had it registered in Adoption Book 2, Conveyance Office for the Parish of Orleans. The act was not registered with the Clerk of Court of the Parish of Jefferson until December 24, 1963, approximately fourteen days after the death of the adopter (decedent).

In speaking of adoptions, the Supreme Court in Green v. Paul, 212 La. 337, 31 So.2d 819, said:

'While adoption is a practice of grant antiquity, having been known to the Egyptians, Babylonians, Assyrians, Greeks and ancient Germans and having been recognized in the civil law before the time of Justinian, there is no adoption at common law and, in the United States it exists only by statute (2 C.J.S., Adoption of Children, § 2 p. 370). It has been firmly settled by this court that adoption is a creature of statute; that, this being so, it is only what the law makes it and that, to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. See Succession of Pizzati, 141 La. 645, 75 So. 498; In re Brands' Estate, 153 La. 195, 95 So. 603; Succession of Brand et ux., 162 La. 880, 111 So. 267; State ex rel. Monroe et ux. v. Ford, 164 La. 149, 113 So. 798; Hardy v. Mobley, 183 La. 668, 164 So. 621 and Owles v. Jackson, 199 La. 940, 7 So.2d 192.'

Adoption is defined to be the establishment of the relationship of parent and child between persons not so related by nature, and the act of adoption creates a status rather than a contractual relationship. 2 C.J.S. Adoption of Children, § 1, pp. 367 and 368; Green v. Paul, supra; Succession of Thomson, 221 La. 791, 60 So.2d 411.

Adoption was known to the law of France. An English translation thereof shows that the official edition of the Code Napoleon published at Paris in 1804 contains provisions concerning the adoption of one person by another (see Arts. 353 through 360). Procedure for adoption was minutely outlined; the matter was required to be finally submitted to the Court of appeal, which, without assigning reasons, shall pronounce: 'The judgment is confirmed,' or 'The judgment is reversed; in consequence there is ground,' or 'There is no ground for adoption.' Article 359 required that within three months after the confirmation of the judgment, the adoption shall be enrolled on the requisition of one or the other of the parties on the register of the civil power of the place where the adopter is domiciled and the adoption 'shall remain without effect unless it be enrolled within this interval.' At the present time (see new Art. 367) the transcription is made upon the petition of the avoue or of one of the parties. Planiol, Vol. 1, p. 884.

In 1917 the Supreme Court decided Succession of Pizzati, 141 La. 645, 75 So. 498, holding therein that there was no law in Louisiana authorizing the adoption of a major despite LSA-C.C. art. 214 which provided that any person may adopt a major as well as a minor. The Court pointed out that said article not having made provision for the mode of effecting the adoption of a major, it was defective and inoperative. The Court said:

'The legal status is a result of the adoption; it is not the adoption itself, for the adoption is the act, the outward manifestation or ceremonial, by which it is brought about. A statute which authorizes the result to be brought about, but does not provide the means of bringing that result about, or, in other words, authorizes adoption without providing the means of effecting it, is defective, and can have no operation. Such a statute is in the same condition as those constitutional provisions which, for the same reason of not having provided the means of being carried in effect, are held not to be self-operative. * * *'

The bridge was gapped by Act 109 of 1924 which provided for the adoption of adults, the prescribed formalities being an authentic act signed by the parties which 'shall' be recorded in the Mortgage Records of the parish wherein the person adopting resides. Act 13 of 1928 provided that all acts of adoption shall be filed with the Clerk of Court of the parish where the act of adoption was executed. Act 46 of 1932 (as amended by Act 44 of 1934) placed adopted persons in two categories (those under 17 and those 17 or over); in the case of persons 17 years old, or more, the formality was that the adoption should be by authentic act or by private act duly acknowledged, signed by the parties; no recordation or registration was required under Act 46 of 1932 or Act 44 of 1934.

Then came Act 169 of 1940 which merely required a 'notarial act' of adoption to be registered with the Clerk of Court of the parish in which the act is executed; said provisions were carried over into the LSA-Revised Statutes of 1950 under Section 9:461, which in turn was amended by Act 514 of 1952, and as a result LSA-R.S. 9:461 now prevails in the matter of the adoption of persons over 17 years of age and provides as follows:

'Any person above the age of twenty years may adopt any person over the age of seventeen years, according to the following conditions, limitations and procedure:

'(1) That the adoption shall be effected by the execution of a notarial act signed by the adoptive parent or parents and the person to be adopted, where the person to be adopted is a major or an emancipated minor, * * *.

'(2) That the notarial act executed in accordance with paragraph (1) of this Section shall be registered with the clerk of court of the parish in which the act is executed, except in the parish of Orleans, where it shall be registered with the register of conveyances for the parish of Orleans. The clerk of court or register of conveyances shall record all such notarial acts of adoption, except as otherwise provided in paragraph (1) hereof, in a separate book kept by him for the purpose, and shall keep an index of the same under the names of the adoptive parents and the person adopted.'

Thus, the current law which provides that the 'notarial act' shall be registered with the Clerk of Court of the parish in which the act is executed is traced to Act 169 of 1940.

The Supreme Court in Succession of thomson, supra, held that once an act of adoption was entered into, it could not be revoked by the parties on the ground that it was a 'mistake' and the parties wished to withdraw therefrom. In said case the Court also held that whereas Act 169 of 1940 required that the adoption be by notarial act, such act need not be signed by witnesses. A notarial act was, therefore, distinguished by the Supreme Court from an authentic act which under LSA-C.C. art. 2234 is defined as one executed before a notary public or other officer authorized to execute such functions in the presence of two witnesses.

The only case in Louisiana in which the question of registration was even remotely involved was in Succession of Williams, 224 La. 871, 71 So.2d 229, wherein an act of adoption passed in 1928 (under Act 13 of that year) was not registered until 22 years later, a few days prior to the institution of the action. The Court held that the application of Act 46 of 1932, § 13 (a statute of repose) was not contingent upon recordation of the adoption or actual knowledge of its existence. The Court in passing noticed that a proviso contained in Section 2 of Act 13 of 1928 states that a failure to record any act of adoption shall not invalidate it.

Our attention has not been called to a single case, nor has a diligent research revealed any...