Succession of Goss

• Decision Date: 27 November 1974
• Docket Number: No. 4778,4778
• Citation: 304 So.2d 704
• Parties: Succession of Winston D. GOSS. Robert Winston G. ZUCKSWERT, Plaintiff and Appellee, v. Gertrude Brinkman GOSS et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 704

304 So.2d 704

Succession of Winston D. GOSS Robert Winston G. ZUCKSWERT, Plaintiff and Appellee, v. Gertrude Brinkman GOSS et al., Defendants and Appellants.

No. 4778.

Court of Appeal of Louisiana, Third Circuit.

Nov. 27, 1974.

Rehearing Denied Jan. 9, 1975.

Writ Refused March 7, 1975.

Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for defendants-appellants.

Charles N. Wooten, Lafayette, for plaintiff-appellee.

Before FRUGE , MILLER and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

This is a suit to annul in part the last will and testament of Winston D. Goss, who died on January 30, 1973, so as to reduce certain allegedly excessive donations contained therein. The will is being contested by Robert Winston Goss Zuckswert, contending that he is the only son and heir of the testator and therefore entitled to one-third (1/3) of the testator's estate as his forced portion. After a trial on the merits, judgment was rendered in favor of the plaintiff recognizing him to be the sole legitimate child and forced heir of the decedent, declaring the will null and void insofar as it purported to donate in excess of the decedent's disposable portion, and reducing proportionately the donations contained therein. From said judgment Gertrude B. Goss, widow of the decedent and executrix of the estate, in addition to the other legatees named in the will, have appealed to this court.

The pertinent facts leading up to this suit are as follows: Winston D. Goss and Mildred Fabricius were married on May 26, 1928, in the state of California. Some two years later, in August, 1930, the wife filed suit for a California divorce and subsequently an interlocutory judgment of divorce was granted on October 31, 1930. A final divorce was granted in the same proceedings on November 25, 1931.

Early in 1932 Winston D. Goss left California and returned to the home of his parents in Acadia Parish, Louisiana. He remained in Acadia Parish until his death.

Subsequently, Robert Winston Fabricius, the plaintiff herein, was born to Mildred Fabricius on August 24, 1932, (274 days after the final divorce decree and 693 days after the interlocutory judgment in Oakland, California). Winston D. Goss was listed in the birth certificate as the father of the plaintiff. ¹

Mildred Fabricius remarried in November, 1933, to David E. Zuckswert. Plaintiff's name was subsequently changed by his mother, without his knowledge, in 1947, from Robert Winston Goss to Robert Winston Zuckswert.

Winston D. Goss also married a second time on December 31, 1938, to Gertrude Brinkman, with whom he resided until his death. No children were born of this latter marriage.

As aforementioned, Winston D. Goss died on January 30, 1973, leaving a last will and testament, disposing of all of the property of his estate to various legatees (his wife by the second marriage, certain living brothers and sisters, and certain descendants of a deceased brother).

On the same day the last will and testament was prepared (December 4, 1970), Goss also executed a written affidavit to the effect that he had knowledge of the birth of plaintiff to his first wife on August 24, 1932, but that he had been separated from her since 1930 and that he was not the father of this child.

Plaintiff brought this action on April 5, 1973.

The first issue presented is whether the plaintiff is the legitimate son of the decedent, Winston D. Goss.

At the outset, this issue presents the question of which state law (California or Louisiana) would control plaintiff's status relating to his birth rights?

We are of the opinion, as was the trial judge, that California law should apply.

Under general conflict of laws doctrine, the law of the domicile, the lex domicilii, governs and controls the status of the individual . 15A C.J.S. Conflict of Laws § 14(2), p. 467; 16 Am.Jur.2d, Conflict of Laws § 12, p. 26. Likewise once status attaches, it usually follows the person and is recognized elsewhere.

Status includes such conditions as marriage, adoption, infancy, and LEGITIMACY, 15A C.J.S., supra, cited in Sun Oil Co. v. Guidry, 99 So.2d 424 (La.App.1st Cir. 1957).

The jurisprudence of this state has recognized the status of Adoption, ² Infancy, ³ And marriage, ⁴ to be controlled by the law of the domicile of the parties whose status is questioned.

Likewise, Legitimacy has clearly been held to be determined by reference to the law at the place of domicile where the infant is born. See: 15A C.J.S. Conflict of Laws, § 14(8), p. 479.

In Scott v. Key, ⁵ 11 La.Ann. 232 (1856), an infant was born out of wedlock to a resident in the state of Arkansas. Thereafter, while continuing to reside with his natural father in Arkansas, a state statute was passed by the legislature in which the child was declared legitimate. Thereafter the father and son became residents of Louisiana. After the death of both father and son a dispute arose among the collateral heirs of the father and the heirs of the son as to inheritance of real property located in Louisiana. The court held that under Arkansas law the child was legitimate, that such status followed him across state lines, and as a result he was heir to his father under Louisiana law. It was stated as 'a well settled principle, that the status or condition, as to the legitimacy, must be determined by reference to the law of the country where such status or condition had its origin'. In addition the court observed that the Arkansas statute did not conflict with the Louisiana law of inheritance.

Similarly in Marzette v. Cronk, 141 La. 437, 75 So. 107 (1917) our Supreme Court recognized the legitimate status of two children, such status having been created by an 1866 Arkansas statute which declared that the marriages of all persons of color who were then living together as husband and wife were valid and that their children were legitimate.

This same principle has likewise been followed in a number of cases where children were deemed legitimate by a valid marriage (outside of Louisiana) which would not have been legal within the state, i.e. miscegenous marriage--Succession of Caballero v. Executor, 24 La.Ann. 573 (1872); common law marriages--Doiron v. Vacuum Oil Co., 164 La. 15, 113 So. 748 (1927); Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App.3rd Cir. 1964).

The spirit of comity existing between the several states of our country requires that Louisiana recognize the status of the plaintiff herein as created by California law unless by so doing we would violate the positive law or public policy of our own state, Succession of Fisher, supra.

The pertinent California law (§ 661--California Code of Evidence) provides the following:

' § 661. Legitimacy. A child of a woman who is or has been married, born during the marriage or within 300 days after the dissolution thereof, is presumed to be a legitimate child of that marriage. This presumption may be disputed only by the people of the State of California in a criminal action brought under Section 270 of the Penal Code or by the husband or wife, or the descendant of one or both of them. In a civil action, this presumption may be rebutted only by clear and convincing proof.'

The California courts have repeatedly held that dissolution of marriage occurs only after a final decree of divorce has been rendered. Olson v. Superior Court, 175 Cal. 250, 165 P. 706 (1917); Louis v. Louis, 7 Cal.App.3rd 851, 86 Cal.Rptr. 834 (1970); Green v. Green, 66 Cal.App.2d 50, 151 P.2d 679 (1944).

Thus under the California statute, upon birth, the presumption of legitimacy attached to the plaintiff by reason of being born within 300 (actually 274) days after the divorce between Winston and Mildred Goss.

This statute is neither in conflict with our positive law or in violation of the public policy of this state. In fact Civil Code Art. 187, in part, recognizes the same presumption of legitimacy as the California statute, insofar as a child born within 300 days of the dissolution of the marriage is concerned.

Louisiana law (Civil Code Art. 187) further provides that a person born more than 300 days after a 'sentence of separation from bed and board' would lose the presumption of legitimacy. The defendants therefore contend that plaintiff should be deemed illegitimate due to the fact he was born some 693 days after the California 'interlocutory decree of divorce,' which allegedly has the same civil effects as our Louisiana 'separation from bed and board.'

Assuming, arguendo, that the 'interlocutory decree' for all practical purposes can be likened to our 'separation from bed and board', we do not feel that this conflict is of the type which precludes the application of California law herein. As aforementioned, the California law is Not actually in conflict with Louisiana law. It is only the application of our own different law (i.e.--non presumptive status of a person born 300 days after sentence of separation from bed and board) to a person deemed legitimate at birth in California that raises a conflict.

Our courts have not heretofore refused to apply the law of another state in respect to the legitimacy (or any other status) merely because the child, if born in Louisiana, would not have been considered legitimate (or adopted, etc.) under our law.

Likewise it is clear that recognizing plaintiff's status as a legitimate child is not in violation of the public policy of this state. In fact our public policy is clearly reflected by our laws, which insure that the legitimacy of a child will be maintained whenever possible (Stewart v. Stewart, 233 So.2d 305 (La.App.1st Cir . 1970)), provide presumptions of the strictest nature (LSA C.C. Arts. 184--192), and protect helpless children, born legitimate, from illegitimation by one or both of their parents for their own selfish aims (Tannehill v. Tannehill, 226 So.2d 185 (La.App.3rd Cir. 1969), affirmed 261 La. 933, 261 So.2d 619 (1972)).

As a result of the foregoing, we feel...