Succession of Pizzillo

Citation223 La. 328,65 So.2d 783
Decision Date27 April 1953
Docket NumberNo. 40873,40873
PartiesSuccession of PIZZILLO.
CourtSupreme Court of Louisiana

Ashton L. Stewart and Landry & Landry, Baton Rouge, for appellant.

Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellee.

McCALEB, Justice.

The Succession of Anthony J. Pizzillo was opened in the Nineteenth Judicial District Court for the Parish of East Baton Rouge on the petition of appellant, Mrs. Ruby Ahrend Pizzillo, surviving spouse of decedent, who made application for letters of administration. In due course, her application was opposed by appellee, Mrs. Anna Belle Pizzillo Saizan, who alleging that she is the adopted daughter of the decedent, claimed the right of appointment as his sole beneficiary heir. Appellant, the widow by a second marriage, denied that appellee was legally adopted asserting that the act of adoption was void in that it did not conform to the adoption statute in force at the time of its execution.

The contest thereafter proceeded to trial on this single issue, it being stipulated that, if the adoption is valid, appellee is the preferred applicant under Article 1121 of the LSA-Civil Code. After a hearing, the judge upheld the act of adoption. Wherefore this appeal.

The facts are that appellee was born, out of wedlock, on April 16, 1928 to one Vira Clements at Kings Daughters Home in Natchez, Mississippi. Shortly after her birth, she was entrusted by the Home to the custody of decedent and his first wife, who were residents of East Baton Rouge Parish. On March 1, 1930, decedent and his first wife, whom he later divorced, executed, in East Baton Rouge Parish, a notarial act of adoption of the child and, on March 7, 1930, Kings Daughters Home formally consented thereto. However, the act was not signed by either the natural father or mother. The natural father was unidentified but the mother resided in Natchez and was known to Kings Daughters Home.

Appellant contends that the adoption is an absolute nullity because the act did not contain the written consent of the known natural parent or parents as required by Act 31 of 1872, as amended by Act 48 of 1924, the applicable law at the time it was confected. And it is further maintained that the consent given by Kings Daughters Home to the adoption of appellee was ineffectual for the reason that the provisions of Act 48 of 1924, vesting charitable institutions with such power, applied only in cases where the child was an abandoned child or a foundling and that appellee could not have been so classified within the meaning of the law.

Contra, appellee asserts that the signature of her natural mother was unnecessary as she was either an abandoned child or a foundling and, accordingly, the consent of Kings Daughters Home to her adoption sufficed under Act 48 of 1924. Further, she proclaims that, even if there were irregularities or insufficiencies in the notarial act, they were cured by Section 13 of Act 46 of 1932 which confirmed, approved and validated all adoptions made under prior laws.

Being of the opinion that the second contention of appellee is well founded, it would be inutile for us to decide whether the act of adoption was in strict conformance with the provisions of Act 31 of 1872, as amended by Act 48 of 1924, under which adoptions were effected solely by notarial act.

By Act 46 of 1932, the procedure was changed, it being required that, in addition to the execution of a notarial act, approval of a court of competent jurisdiction, after proceedings therein, be obtained. 1 Section 13 of that statute declared:

'That any and all adoptions heretofore made, be and they are hereby confirmed, approved and validated, and that any action to set aside or annul any act of adoption made prior to the passage of this act shall be prescribed after the lapse of six months from and after the promulgation of this act; but this prescriptive period shall apply solely to actions having the purpose of setting aside and annuling acts of adoption by reason of such adoption not having been effected by an authentic act, but by private act before witnesses and acknowledged, or that all necessary parties did not sign the act of adoption'. (Italics ours.)

These provisions are clear; they validate all adoptions made under statutes in force prior to 1932, although a period of six months is allowed for the filing of actions having for their purpose the annulment of acts of adoption for the specified causes mentioned in the section. Therefore, after six months had elapsed from the promulgation of Act 46 of 1932, the act of adoption involved herein was immune to attack.

Counsel for appellant contend that the above quoted section does not control this case. Initially, it is said that the provision is one of prescription and, since appellee did not file a plea of prescription...

To continue reading

Request your trial
40 cases
  • Chevron Oil Company v. Huson 8212 11
    • United States
    • United States Supreme Court
    • 6 December 1971
    ......Cameron Iron Works, Inc., 5 Cir., 259 F.2d 420, 422—424; Istre v. Diamond M. Drilling Co., 226 So.2d 779, 794—795 (La.App.); Succession of Pizzillo, 223 La. 328, 335, 65 So.2d 783, 786. This characterization has importance under principles of the conflict of laws. It has been held, as ......
  • Wooley v. Lucksinger, 2006 CA 1140.
    • United States
    • Court of Appeal of Louisiana (US)
    • 30 December 2008
    ...indeed a difference between prescription and peremption as noted by the Court of Appeal and as pointed out in the Succession of Pizzillo[, 223 La. 328, 65 So.2d 783 (La.1953)], supra. Nevertheless we conclude that peremption is but a form of prescription, a species thereof, but with the cha......
  • Kinnett v. Kinnett
    • United States
    • Court of Appeal of Louisiana (US)
    • 6 August 2020
    ...of time for which a right exists and cannot be renounced, interrupted, or suspended. La. C.C. arts. 3458 & 3461 ; Succession of Pizzillo , 223 La. 328, 65 So.2d 783, 786 (1953). However, as to Article 198, the legislature saw fit to include an exception to the default rule. See infra Sectio......
  • Jackson v. Hanna
    • United States
    • Court of Appeal of Louisiana (US)
    • 11 January 1968
    .......         In accordance with an order issued by this court Willie Jackson as provisional administrator of the Succession of Curtis Jackson, has become substituted as a party plaintiff in lieu of Curtis Jackson, deceased. .         The following described tract ...338, 340, 341. .         The distinction between prescription and peremption is set forth clearly in the Succession of Pizzillo, 223 La. 328, 65 So.2d 783: . '* * * The difference between prescription and peremption is that the former simply bars the remedy whereas, in the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT