Welch v. Jacobsmeyer

• Citation: 216 La. 333,43 So.2d 678
• Decision Date: 07 November 1949
• Docket Number: No. 39141,39141
• Parties: WELCH et al. v. JACOBSMEYER et al.
• Court: Louisiana Supreme Court

Page 678

43 So.2d 678

216 La. 333

WELCH et al. v. JACOBSMEYER et al.

No. 39141.

Supreme Court of Louisiana.

Nov. 7, 1949.

Rehearing Denied Dec. 9, 1949.

Fishman, Reuter & D'Aquin, New Orleans, Reid & Reid, Hammond, for plaintiffs-appellants.

Joseph A. Sims, Hammond, and Kemble K. Kennedy, Baton Rouge, for defendants-appellees.

MOISE, Justice.

This appeal taken by the plaintiffs presents but one issue: Were the exceptions of no right and no cause of action properly sustained as the basis for dismissal of plaintiffs' suit?

This litigation is the outgrowth of a succession under administration in the Parish of Tangipahoa, where Mrs. Florence Ellen Summy, widow of Charles D. Summy, the deceased, was domiciled. She left a will in olographic form in which, after making a special bequest to one of the defendants, she bequeathed the remainder of her estate to the other defendant, Dr. J. Albert Jacobsmeyer, the husband of a predeceased niece. She appointed Dr. Jacobsmeyer as executor of her estate.

The will was probated, and the succession was in the process of administration and an account filed when the plaintiffs herein brought this action seeking to have Mrs. Myrtle Marie Adela Welch recognized as the legally adopted daughter of the deceased. Charles J. Whitaker, now deceased, recognized as an adopted son of the decedent (whom he predeceased), and his children (the six minors plaintiff) decreed his sole and only heirs and as such, his representatives and the owners of his alleged interest in decedent's estate. The plaintiffs also pray that the dispositions in the last will and testament of the decedent be reduced to the alleged disposable portion, and that the legitime be reserved to them as forced heirs.

It is an elementary principle of law that in passing upon an exception of no right and no cause of action all of the well-pleaded allegations of the petition must be taken as true, but we do not accept mere conclusions of law. The law exacts of its suitors the pursuit of a real and substantial interest. Article 15, Code of Practice. The origin and progress of our jurisprudence looks to the good of mankind as its basis and the accumulated wisdom of the ages for its improvement. To adopt the conclusions of the pleaders in this instance there should be allegations of fact sufficient to meet the requirements of the law as to the proof of the alleged adoptions. The necessary predicate for the cause of action--regular and legal adoptions--and the supporting facts showing that there were such adoptions under the laws of another State should be pointed out. These are matters of evidence that first must be pleaded before the reception of proof of the law. The law exacts the kind and character of proof. The allegation as pleaded in Article 9 of plaintiffs' petition that '* * * from information and belief petitioners were adopted * * *' is a conclusion of the pleaders, and becomes a mere brutum fulmen in the absence of supporting facts or documents and the law to sustain such conclusion.

The trial court maintained the exceptions on the ground that the laws of the State of Missouri relating to adoptions are presumed to be the same as those of the State of Louisiana, and that, as the formalities requisite to show valid adoptions under the laws of Missouri are absent in the pleadings and there is no proof thereof, there is the presumption that the laws of Missouri are the same as our own. In support of this presumption the trial court cites the cases of Roehl v. Porteous, 47 La.Ann. 1582, 18 So. 645; Mulling v. Jones, 142 La. 300, 76 So. 720; Busby v. Busby, 168 La. 510, 122 So. 599; and Alexander v. Gray et al., La.App., 181 So. 639.

A careful examination of the foregoing cases will reveal that there was no unqualified presumption that the law of another State is presumed to be the same as our own. This presumption prevails only in the absence of proof to the contrary. Here we do not have sufficient allegations to sustain the proof of the laws of the sister state.

The case of Roehl v. Porteous involved an alleged debt arising out of a mortgage foreclosure in the state of Alabama. One of the issues was whether certain formalities prescribed by Alabama law for such foreclosure had been observed. The Court refused to examine the facts in the light of the Alabama law because that had not been pleaded, and therefore it applied the law of our State, and declared [47 La.Ann. 1582, 18 So. 646]:

'The plain facts are that it is not shown that the property was advertised for sale, and that any of the required notices were given. There is not of record any authentic evidence of the proceedings of foreclosure. It may be that some of the formalities of foreclosure are legal under the laws of Alabama, such as the offering of the property for sale by public auction by the vice president of the land company, and the dispensing of all notices, save the advertisement.

'They are indispensable to the foreclosure of a mortgage under the laws of this state. In the absence of all proof regarding the foreclosure of mortgages, it must be presumed that the laws of Alabama are similar, in pari materiae, to the laws of this state.' (Italics mine.)

In Muling v. Jones the validity of an execution on real property in Louisiana was involved, subsequent to securing a judgment in Louisiana against nonresident defendants, based on a confession of judgment obtained from them in the state of their residence, Mississippi. The foreclosure procedure was defective under Louisiana law, as was the original confession of judgment, which the court refused to examine under the foreign law, since the latter had not been proven, saying [142 La. 300, 76 So. 721]:

'The learned counsel for the plaintiffs in judgment argue that by the laws of Mississippi a married woman may bind herself and stand in judgment without need of the authorization of her husband; but no proof of that fact has been made, and until the laws of said state are proved to be different from ours they must be presumed to be the same as ours.' (Emphasis mine.)

In the instant case the difference between the laws of Missouri and our own State is neither alleged, nor pleaded, nor proven, nor for that matter are any 'public acts, records or judicial proceedings' submitted to which the full faith and credit clause of the U. S. Constitution, Art. 4, § 1, could be applied.

In the case of Busby v. Busby our court held: 'The community of acqets and gains exists under the laws of Texas and of this state, and the Texas laws on the subject are presumed to be the same as our own, in the absence of proof in the record to the contrary.' (Italics mine.)

The last case cited in support of the above presumption, Alexander v. Gray, La.App., 181 So. 639, 645, arose out of these circumstances: There was a written contract of adoption entered into in the State of Kansas which was relied on to establish plaintiff's status as an adopted child. There was no proof of judicial sanction of this instrument nor of the Kansas law relating to adoptions. In affirming the district court's dismissal, the Court of Appeal of the Second Circuit stated:

'The laws of the State of Kansas applicable to instruments of this character are not quoted in full nor is their substance given. That the instrument is valid as an adoption under the laws of Kansas is a legal conclusion. In such circumstances, the laws of that state must be presumed to be the same as our own. * * *

'Judicial cognizance will not be taken of the existence and nature of the laws of a sister state. When relied upon by a litigant, they must be proven as any other fact in the case.' (Italics mine.)

Here the plaintiffs allege on 'information and...