____________________________ PART II: SUCCESSIONS ____________________________
SH 28.1
PGF
|
Fp------M
|
S*
Before S died, PGF gave him Belle Terre, a tract of land, as a Christmas gift. Who inherits it? Why?
SH 28.2. The same as before (SH 28.1), except that, right before his death, S sold Belle Terre to X for
$100,000, due in 5 years. Can PGF get the land back? Why or why not? If not, does PGF get anything?
Why or why not? If so, what does he get? Why?
SH 28.3. The same as before (SH 28.1), except that S, before his death, mortgages Belle Terre to
Bayou Bank. Does PGF still get it? Why or why not? If he does, does he get it back free of or subject to
the mortgage? Why?
SH 28.4. The same as before (SH 28.1), except that S, by testament, leaves Belle Terre to Pascal. Who
gets Belle Terre--Pascal, the legatee, or PGF, the ascendant? Why?
4)
Adopted children
a)
b)
Statement of problems
1]
Adopted child as heir
2]
Adopted child as de cujus
Answers
1]
Full adoption
a]
Definition
b]
Effects
1}
2}
Adopted child as heir
a}
Inherits from adoptive relations (CC art. 214.B)
b}
Inherits from blood relations (CC art. 214.C)
Adopted child as de cujus
a}
Adoptive relations inherit from him (CC art.
-436-
____________________________ PART II: SUCCESSIONS ____________________________
214.B)
b}
2]
Partial adoption
a]
Definition
b]
Effects
1}
2}
c)
Blood relations do not (CC art. 214.C)
Adopted child as heir
a}
Inherits from adoptive relations (CC art. 214.B)
b}
Inherits from blood relations of both nonrelinquishing and relinquishing biological parent
(CC art. 214.C)
Adopted child as de cujus
a}
Adoptive relations inherit from him (CC art.
214.B)
b}
Blood relations of non-relinquishing parent
inherit from him (CC art. 214.C)
c}
Blood relations of dead or relinquishing parent do
not (CC art. 214.C)
Illustrations
SH 29.1.






PGM

Fp----------M--------H2




 adoption
A* 
F and M are married. After M bears F a child, A, F dies. M then marries H2. H2 then adopts A. Then A
dies. Who inherits A’s estate? Why?
-437-
____________________________ PART II: SUCCESSIONS ____________________________
SH 29.2. The same as before, except that, this time, A lives and M and H2 die. Who succeeds to their
estates? Why?
SH 29.3. The same as SH 29.2, except that, this time, after M and H2 dies, PGM dies. Who succeeds
to her estate? Why?
5)
Illegitimates
a)
Introduction
________
Cynthia Samuel, Katherine S. Spaht, & Cynthia Picou,
SUCCESSIONS & DONATIONS: CASES & READINGS 17-19 (Fall 2000)
In 1980, the Louisiana Supreme Court in Succession of Brown, 388 So.2d 1151
(La. 1980), declared Civil Code article 919 unconstitutional under the equal protection
clauses of the United States and Louisiana Constitutions because the article affording
intestate succession rights to children of the deceased father discriminated among
illegitimate and legitimate children. The decision was essentially consistent with the
United States Supreme Court decision of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct.
1459, 52 L.Ed.2d 1459 (1977), which held an Illinois statute discriminating against an
illegitimate in inheriting from his father unconstitutional. Nonetheless, the Louisiana
Supreme Court recognized in the Brown decision that a state statute could require
exacting proof of paternity of the illegitimate, a conclusion for which the court
correctly cited another United States Supreme Court decision, Lalli v. Lalli, 439 U.S.
259, 99 S.Ct. 518, 58 L.Ed.2d 502 (1978).
Subsequently, in Succession of Clivens, 426 So.2d 585 (La. 1982), the Louisiana
Supreme Court refused to apply its decision in the Brown case to the succession of a
decedent who died on September 24, 1971, who had been survived by his wife and his
acknowledged illegitimate daughter. His wife had been put into possession of all of
his property pursuant to the Civil Code articles then in force; but the daughter, relying
on Succession of Brown, claimed to be legally entitled to the decedent’s property as his
sole descendant. The Supreme Court concluded that since the Brown decision relied
upon the equal protection clause of the Louisiana Constitution of 1974, the Civil Code
articles discriminating among illegitimate and legitimate children in inheritance from
their parents, were unconstitutional as of the effective date of the equal protection
clause, January 1, 1975. Furthermore, since a right to inherit intestate vests upon death
of the decedent, the articles could not be applied in the successions of decedents who
died before January 1, 1975, such as the succession of Clivens.
The Louisiana Supreme Court in Succession of Grice, 462 So.2d 131 (La. 1985)
upheld under both the United States and Louisiana Constitutions the requirement of
Civil Code article 209 that filiation proceedings be brought within nineteen years of
the child’s birth. The Court relied upon such United States Supreme Court decisions
-438-
____________________________ PART II: SUCCESSIONS ____________________________
as Mills v. Habluetzel, 102 S.Ct. 1549 (1982) and Pickett v. Brown, 103 S.Ct. 2199
(1983). The Court found (1) that the period was sufficiently long to provide a
reasonable opportunity for those interested in the child’s welfare to bring a suit on his
behalf and (2) that the nineteen-year limitation was substantially related to the state’s
interest in providing for the just and orderly disposition of a decedent’s property where
paternal inheritance is concerned. The United States Supreme Court rendered one
more decision on the constitutionality of statutes governing the procedure and time
limits for proving filiation, Clark v. Jeter, 108 S.Ct. 1910 (1988).
...
Shortly after the Grice decision, the United States Supreme Court decided Reed v.
Campbell, 476 U.S. 852 (1986). In Reed the decedent died intestate four months
before Trimble v. Gordon was decided. He was survived by one illegitimate and five
legitimate children. Although Trimble invalidated Texas’ total exclusion of
illegitimate children from the succession of their father, the Texas Court of Appeals
held that Trimble was not retroactive in Texas and an illegitimate child whose
decedent died prior to Trimble had no claim. The Texas Supreme Court refused the
application of error noting no reversible error. The decedent’s estate was still under
administration and no final distribution of property had been made at the time that the
illegitimate child had made her formal claim to one-sixth of the estate. The United
States Supreme Court reversed the decision of the Texas Court of Appeals, stating as
follows:
The state interest in the orderly disposition of decedent’s estates may
justify the imposition of special requirements upon an illegitimate child who
asserts a right to inherit from her father, and, of course, it justifies the
enforcement of generally applicable limitations on the time and the manner
in which claims may be asserted. After an estate has been finally
distributed, the interest in finality may provide an additional, valid
justification for barring the belated assertion of claims, though they may be
meritorious and even though mistakes of law or fact may have occurred
during the probate process. We find no such justification for the State’s
rejection of appellant’s claim in this case.
...
The interest in equal treatment protected by the Fourteenth Amendment
to the Constitution – more specifically, the interest in avoiding unjustified
discrimination against children born out of wedlock ... should therefore have
been given controlling effect. That interest requires that appellant’s claim to
a share in her father’s estate be protected by the full applicability of Trimble
to her claim.
Is Reed v. Campbell limited to its facts, or does it mean that the illegitimate child
must be allowed to assert his claim until final distribution of the estate? See
Sudwischer v. Estate of Hoffpauir, infra. What point in time in Louisiana succession
procedure corresponds to final distribution at the end of a common law administration?
Note that most successions in Louisiana are accepted by the heirs without
administration, a procedure not available in common law states. See La. Code Civ. P.
-439-
____________________________ PART II: SUCCESSIONS ____________________________
art. 3062. For an analysis of Reed v. Campbell’s effect on Louisiana law see Katherine
S. Spaht, Developments in the Law, 1986-1987, 47 LA.L.REV. 471 (1987).
_________
b)
Definition (CC art. 180)
c)
Determination (CC arts. 184-190)
1]
2]
Presumptions (CC arts. 184-186)
a]
Child born or conceived during marriage is presumed to be
legitimate child of husband
b]
Child born after end of marriage, but within 300 days of end
of marriage, is presumed to have been conceived during
marriage
c]
All other children illegitimate, at least at first
Disavowal (CC arts. 187-190)
a]
Remedy: action to disavow
b]
Parties
c]
Prescription
d]
e]
d)
1}
Husband himself
2}
Heir/legatee of husband
Proof
Result: child illegitimate
Modes of filiation
1]
Benefitting person originally illegitimate.
a]
Modes that result in legitimation
1}
By subsequent marriage of parents plus formal or
informal acknowledgment (CC art. 198).
2}
By parent's statement of intent to legitimate in notarial
act (CC art. 200)
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____________________________ PART II: SUCCESSIONS ____________________________
b]
Modes that do not result in legitimation
1}
By parents' formal acknowledgment (CC art. 203)
a}
Modes
1/
Authentic act
a/
Authentic act drawn up for this very
purpose
b/ Some authentic acts drawn up for other
purposes
SH 30.1. Pascal donates Belle Terre to Ti-Boy via authentic act as follows: "I, Pascal, do hereby
donate to Ti-Boy, my beloved son, . . . ." Will this suffice as a formal acknowledgment? Why or why not?
SH 30.2. Pascal signs a notarial testament, valid in form, in which he makes the following bequest: "I,
Pascal, leave to Ti-Boy, my beloved son . . . ." Will this suffice as a formal acknowledgment? Why or why
not? See Succession of Robinson, 654 So.2d 682 (La. 1995) (stating that the testator, by including the
phrase “I leave and bequeath to my daughters BARBARA ANN LYONS, HAZEL MARIE LYONS, AND
PATRICIA MARIE LYONS . . .” in his testament, had “formally acknowledged” those persons).
2/ Birth certificate or baptismal certificate
b}
Effect
1/
Challenge by acknowledger? (CC art. 206)
2/ Challenge by acknowledger's successors?
(CC art. 207)
Can the successors of the acknowledger challenge the "truth" of acknowledgment, i.e., attempt to
show that acknowledged children were not, in fact, biological children of acknowledger? See the
jurisprudence that follows:
________
Succession of Robinson,
654 So.2d 682 (La. 1995)
JOHNSON, J.
On June 14, 1971, Hardie Robinson, Jr., executed a statutory will in which he
formally acknowledged Barbara Ann Lyons, Patricia Marie Lyons, and Hazel Marie
Lyons as his daughters. These acknowledged women were born in 1949, 1951, and
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____________________________ PART II: SUCCESSIONS ____________________________
1953 respectively. At the time the women were conceived and born, their mother,
Hazel Davis Lyons, was married to and living with William Lyons, Sr. Therefore, the
women were the legitimate children of William and Hazel Lyons.
On May 18, 1988, Hardie Robinson, Jr., changed the manner in which his assets
were to be distributed by executing a new statutory will revoking the 1971 will. The
acknowledged women were not mentioned in the 1988 will.
On February 5, 1992, Hardie Robinson, Jr. died. After decedent's death, Melvin
Alfred Robinson petitioned to be appointed the succession administrator claiming that
he was Hardie Robinson, Jr.'s only legitimate child and sole heir. Melvin Robinson
was confirmed as administrator. Thereafter, the acknowledged women intervened in
the succession seeking, among other things, to be recognized by the court as the
formally acknowledged children of decedent based on the 1971 will and, as such, to
participate in decedent's succession as forced heirs. The trial court found that the 1971
will executed by decedent was an acknowledgment by Hardie Robinson, Jr. of his
daughters.
In response, pursuant to La. R.S. 9:396, Melvin Robinson filed a motion to
compel genetic testing through performing blood tests on the acknowledged women
and their mother "to determine what relationship, if any, the purported heirs have to
decedent." The trial court denied the motion stating that "[g]enetic testing has no
relevance to the issue of whether or not [the women] have been acknowledged." The
court of appeal set aside the trial court's judgment and remanded the matter for a
hearing "to determine whether DNA testing ... should be ordered [reasoning that
decedent] could not validly acknowledge [the women] if they were not his children."
The court of appeal found that DNA testing was relevant and that La. R.S. 9:396
would authorize the blood testing. On the intervenors' application, we granted
certiorari to determine the correctness of that ruling.
The issue presented for our review is whether, in a succession proceeding, a court
can compel formally acknowledged illegitimate persons and their mother to submit to
blood tests.
In resolving this issue, we must first determine whether, under the circumstances,
authority exists for ordering the requested blood tests. If so, whether competing
constitutional interests weigh in favor of permitting such testing. Finally, if testing is
permissible in this case, whether procedural safeguards are necessary to protect the
constitutional rights implicated.
La. R.S. 9:396 A, a statute directed at establishing paternity, provides:
Notwithstanding any other provision of law to the contrary, in any civil
action in which paternity is a relevant fact, or in an action en desaveu, the
court, upon its own initiative or upon request made by or on behalf of any
person whose blood is involved, may or, upon motion of any party to the
action made at a time so as not to delay the proceedings unduly, shall order
the mother, child and alleged father to submit to the drawing of blood
samples and shall direct that inherited characteristics in the samples,
including but not limited to blood and tissue type, be determined by
appropriate testing procedure. If any party refuses to submit to such tests,
-442-
____________________________ PART II: SUCCESSIONS ____________________________
the court may resolve the question of paternity against such party or enforce
its order if the rights of others and the interests of justice so require.
The statute authorizes blood testing of the mother and child in cases where
paternity is relevant. Moreover, the general rules of discovery may authorize blood
tests where such tests are likely to produce relevant evidence. Sudwischer v. Estate of
Hoffpauir, 589 So.2d 474 (La.1991); La.Code Civ.P. art. 1422.
Thus, our inquiry is narrowed. We must determine whether Hardie Robinson,
Jr.'s biological relationship to the intervenors is relevant to the legal effect to be given
the formal acknowledgment in this succession proceeding. That is, whether the
validity of the formal acknowledgment depends upon whether decedent was the
intervenor's biological father.
La. Civ. Code art. 178 states that children are either legitimate or illegitimate.
Legitimate children are defined by La. Civ. Code art. 179 as those who are either born
or conceived during marriage or who have been legitimated in the manner provided by
law. La. Civ. Code art. 180 states that illegitimate children are those who are
conceived and born out of marriage. Under La. Civ. Code art. 203, an illegitimate child
is acknowledged by a declaration executed before a notary public, in the presence of
two witnesses, by the "mother" or "father." Although art. 203 does not expressly
preclude executing an acknowledgment where no biological relationship exists, this
conclusion is self-evident and definitional of an acknowledgment. An
acknowledgment is an avowal emanating from the "mother" or "father" to establish
maternal or paternal filiation. 1 M. Planiol, Treatise on the Civil Law § 1476
(La.St.L.Inst. transl. 1959). The word "filiation" describes the fact of biological
parentage. La. Civ. Code arts. 193-197. Thus, through the acknowledgment, the
"mother" or "father" provides proof of maternal or paternal filiation, that is, biological
parentage. Absent a biological relationship, the avowal is null. "A fact cannot be
avowed when it has never existed." 1 Planiol, supra, § 1490(2). If the
acknowledgment is null, it produces no effects.
Our conclusion, that the validity of an acknowledgment may depend on the
existence of a biological relationship is in line with other decisions addressing this
issue. Specifically, in McKinley v. McKinley, 631 So.2d 45 (La. App. 2nd Cir.1994),
Paul McKinley married Wendy McKinley six weeks after she gave birth to Justin
McKinley. Paul and Wendy McKinley knew that Paul was not Justin's biological
father because Justin was conceived before they began dating. Nonetheless, after their
marriage, Paul and Wendy executed an authentic act avowing that Paul was Justin's
father. Sometime thereafter, Paul and Wendy divorced. Wendy sought to terminate
Paul's parental rights asserting that Paul was not the biological nor legal father.
Although custody of Justin was awarded to Paul based on the child's best interest test,
the Second Circuit found that "[o]nly a father may formally acknowledge an
illegitimate child...." Id. at 48. The court concluded that the acknowledgment was
without legal effect. Similarly, courts in France have permitted legal attacks against
false formal acknowledgments. As discussed in 1 Planiol, supra, § 1490(2), a very
young man, just out of college, made the acquaintance of a woman who had a child
then four years old. Through weakness he acknowledged that he was the father of the
-443-
____________________________ PART II: SUCCESSIONS ____________________________
child, born several years before he had met its mother. The Lyons Court of Appeals
held that his suit to attack this acknowledgment was [permissible]. (citing Lyons,
March 13, 1856, D. 56. 2. 232, S. 56 2. 586; Seine, June 28, 1932, Gazette du Palais,
Oct. 10).
Our inquiry regarding the relevance of a biological relationship is not ended
merely by the possibility that the formal acknowledgment is false. The form of the
acknowledgment and the admissibility of evidence to attack the acknowledgment must
also be considered.
A formal acknowledgment executed before a notary and two witnesses is an
authentic act. La. Civ. Code art. 1833. "An authentic act constitutes full proof of the
agreement it contains, as against the parties, their heirs, and successors by universal or
particular title." La. Civ. Code art. 1835. Consequently, parole evidence is rarely
admissible to contradict or destroy the authentic act. Casenotes, Civil Law: Parole
Evidence to Vary an Authentic Act, 27 Loy.L.Rev. 719 (1970-71). However, where it
is alleged that the act is made in contravention to the law, evidence relevant to this fact
is admissible to prove what legal effect, if any, the act will be given. Succession of
Fletcher, 11 La. Ann. 59 (La.1856).
The information sought through blood tests would produce evidence relevant to
paternal filiation. In facilitating a determination of paternity, blood tests are highly
reliable and unequaled in evidentiary value. In re J.M., 590 So.2d 565 (La.1991). In
fact, this court has previously recognized the great evidentiary value provided by a
blood test exclusion of paternity. Id.; Sudwischer; Pace. . . .
Here, Hardie Robinson, Jr. formally acknowledged the intervenors in the 1971
will executed before a notary public and two witnesses. The acknowledgment
complies with the formal requisites contained in art. 203 and is an authentic act. If a
biological relationship did not exist between decedent and the intervenors, then the
acknowledgment was made in contravention of the law, particularly, the substantive
requirements of art. 203. Accordingly, evidence of paternity is germane to the issue of
the validity of the acknowledgment.
The right to challenge the acknowledgment is granted in La. Civ. Code art. 207
which provides that "[e]very claim, set up by illegitimate children, may be contested
by those who have any interest therein." As administrator of the succession and a
forced heir, Melvin Robinson has an interest in defeating the intervenors claim to
participate as forced heirs in the decedent's succession.
Although the information sought is relevant, its production involves a balancing
of competing constitutional interests. Specifically, Melvin Robinson's interest in
discovering data obtainable through blood tests and the state's interest in forcing the
acknowledged women and their mother to submit to a blood test versus the
acknowledged women and their mother's privacy interests.
. . . If Melvin Robinson is decedent's sole forced heir, then he is entitled to inherit
one-fourth of the decedent's estate. La. Civ. Code art. 1493. If only one acknowledged
daughter is a forced heir, then Melvin Robinson's inheritance would remain
unchanged. Id. However, if two or more of the acknowledged women are forced
heirs, then Melvin Robinson will only inherit his share of one-half of the decedent's
-444-
____________________________ PART II: SUCCESSIONS ____________________________
estate. Id. This would greatly reduce Melvin Robinson's legitime. Obviously, Melvin
Robinson has a financial interest in determining whether the decedent was the
acknowledged women's biological father.
Additionally, forced heirship furthers important state interests.... [T]he state has
an interest in preventing parents from circumventing a child's constitutional right as a
forced heir. By acknowledging persons with whom no biological relationship exists, a
parent could greatly reduce a forced heir's legitime and undermine forced heirship
laws. Consequently, the state has a compelling interest in ordering the intervenors to
submit to blood tests to determine the validity of the acknowledgment.
On the other hand, the acknowledged women and their mother have constitutional
privacy and due process rights which protect includes the right to avoid disclosure of
personal matters and the interest in independently making certain kinds of important
decisions.... [W]e find that the invasion of privacy exists, but it is limited. To avoid
the invasion, the intervenors have the option of acquiescing the lack of a biological
relationship with the decedent. See Sudwischer, 589 So.2d at 476.
In balancing the state's compelling interest in protecting the constitutionally
guaranteed right of forced heirship against the limited invasion of privacy, we find that
the latter must fail.
________
By what means can the successors of the acknowledger mount this challenge? See La. R.S. 9:396.
-445-
____________________________ PART II: SUCCESSIONS ____________________________
2}
By paternity action (CC art. 209)
a}
Definition
A paternity action is an action to establish that one person is, in fact, biological child of another.
b}
Parties:
1/
Child himself
Can any and every child bring this action or just some? See CC art. 209.A.
SH 31. Ti-Boy was born during the marriage of Pascal & Julie. Though, as a youngster, he had
assumed that Pascal was, in fact, his father, as a teenager he began to have his doubts. Ti-Boy noticed that
he looked much less like Pascal than like Uncle Bill, a family friend from Arkansas. And so, when he
turned 18, he brought a paternity suit against Uncle Bill under CC art. 209. Is that permissible? Why or
why not?
2/ Representative of child, if child is minor
c}
Prescription:
1/
Exposition: earlier of (i) one year after death
of supposed parent or (ii) child's 19th
birthday
2/ Critique
Is this time limitation constitutional? Why or why not? See Succession of Grice (1985) & Reed v.
Campbell (USSCt 1986), explicated and critiqued in Samuel, Spaht, & Picou, reproduced above at pp.
436-38.
d}
Burden of proof
1/
Preponderance, if putative father is still
alive (209.A)
2/ Clear & convincing, if he's dead (209.B)
e}
Proof
1/
What evidence is relevant? (CC art. 187)
2/ How does plaintiff get scientific evidence?
(La. R.S. 9:396 et seq.)
-446-
____________________________ PART II: SUCCESSIONS ____________________________
a/
From mother and putative father
(396.A)
b/ At least sometimes, from others, e.g.,
siblings co-heirs
Does § 396.A itself allow for compulsion of evidence from co-heirs? If not, then can co-heirs be
compelled? Why or why not? See the jurisprudence that follows:
________
Sudwischer v. Estate of Hoffpauir,
589 So.2d 474 (La. 1991) (on rehearing)
WATSON, J.
This case concerns the constitutional balance between plaintiff's interest in
proving filiation and an heir's right to refuse a blood sample.
Plaintiff, Alana Benoit Sudwischer, sued to establish filiation to Paul C.
Hoffpauir, alleged to be her deceased natural father. LSA-C.C. art. 209(B). Hoffpauir
died intestate, survived by his widow; an adopted son, Paul C. Hoffpauir, Jr.; and a
legitimate daughter, Rosemary Hoffpauir Schuh. Alana seeks a compelled blood test
of Rosemary to aid in proving her filiation. The trial court denied the motion to compel
because LSA-R.S. 9:396 does not authorize blood tests of siblings. . . .
LSA-R.S. 9:396 postulates the existence of an alleged living father and does not
statutorily authorize the testing sought in this case. In context, the statute is directed at
establishing paternity for purposes of child support. There is no indication that the
statutory language expresses a deliberate policy of limitation.
At the time of Alana's birth, her mother was married to Davis Benoit, but Benoit
never lived with them in a family unit. Benoit was in prison, both when Alana was
born (1951) and during the preceding year (1950). Although Benoit's name is on
Alana's birth certificate, they have never had any association. Alana's legal status as
Benoit's child does not preclude her from proving filiation to Hoffpauir. Griffin v.
Succession of Branch, 479 So.2d 324 (La. 1985).
Alana's statutory burden of proof is "clear and convincing evidence". . . .
Although there is deposition testimony that Hoffpauir recognized Alana as his
daughter, scientific testing could corroborate this evidence. . . .
In deposition, Dr. J. Craig Cohen, an expert in DNA testing, testified that it is
possible to identify any relationship between Alana and Hoffpauir. . . .
. . . This DNA testing [in this case] would not achieve that [perfect] accuracy.
However, Rosemary's testing would produce relevant evidence, which could be
considered by the trier of fact with other evidence in evaluating Alana's claim. LSAC.C.P. art. 1422 provides: “Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, . . .”
Rosemary Hoffpauir Schuh was not originally a party to this lawsuit, but she has
been served with a rule to show cause why her blood should not be tested. She is a
forced heir to her father's estate, which remains under administration, and she accepted
-447-
____________________________ PART II: SUCCESSIONS ____________________________
her father's succession unconditionally after this suit was filed. . . . The attorney for
the estate has filed briefs on her behalf, stating that Rosemary strongly opposes a blood
test. There is no allegation that Rosemary's representation by the estate's executors
and attorney is inadequate. The requirements of notice and an opportunity to be heard
have been met.
The state's interest in the orderly disposition of estates may bar assertion of
paternity claims after distribution of an estate. Lalli v. Lalli, 439 U.S. 259, 99 S. Ct.
518, 58 L.Ed. 2d 503 (1978). However, Hoffpauir's estate is under administration and
Alana's claim is timely. Reed v. Campbell, 476 U.S. 852, 106 S. Ct. 2234, 90 L.Ed. 2d
858 (1986). The inheritance rights of legitimate and illegitimate children are entitled
to equal protection of the law. Succession of Brown, 388 So.2d 1151 (La. 1980).
Alana has a constitutional right to prove filiation to a deceased father. Trimble v.
Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed. 2d 31 (1977). That right must be
weighed against the invasion of Rosemary's privacy presented by a compelled blood
test. LSA-Const. art. I, § 3. See Aleinikoff, Constitutional Law in the Age of
Balancing, 96 Yale L.J. 943 (1987). To compel a blood test of Rosemary, Alana's
interest in identifying her father must outweigh Rosemary's expectation of privacy.
Although she bears the Benoit name, Alana has never enjoyed a father/daughter
relationship with Benoit. She has an overriding emotional and financial interest in
knowing her father's identity. Rosemary has a financial interest in opposing Alana's
claim but has asserted no physical or religious obstacles to a blood test. Schmerber v.
California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.Ed. 2d 908 (1966). The invasion of
Rosemary's privacy is minimal. Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1
L.Ed. 2d 448 (1957). Rosemary has the alternative of conceding a relationship to
Alana. Under these circumstances, the trial court erred in denying Alana's motion to
compel the DNA testing of Rosemary's blood.
________
2]
Benefitting parent of person originally illegitimate
a]
Means enumerated (CC art. 891)
1}
Legitimation by notarial act (CC art. 200)
2}
Formal acknowledgement (CC art. 203)
3}
Paternity judgment in action by child (209)
4}
Informal acknowledgment, i.e., "openly and notoriously
treat[ing] child as his own"
-448-
____________________________ PART II: SUCCESSIONS ____________________________
b]
Means excluded
c]
Means compared (CC art. 891)
Are all of these means effective to filiate the illegitimate child to the parent so that the former can
inherit from the latter? Why or why not?
SH 32.1. Bill sires a child, Bubba, out of wedlock, by Monica. Bill never marries her; never executes
a notarial act of legitimation; never executes a formal acknowledgement. But he does introduce Bubba to
his friends as "my son." Bubba dies. Can Bill inherit from him? Why or why not?
SH 32.2. The same as SH 32.1, except that Bill dies. Bubba is then 25 years old. Can Bubba inherit
from him? Why or why not?
3]
Benefitting other relative of person originally illegitimate
a]
Means enumerated
1}
Step 1
a}
Permitted:
1/
Legitimation by notarial act (CC art. 200)
2/ Formal acknowledgment (CC art. 203)
3/ Paternity judgment in action by child (CC
art. 209)
b}
Not permitted
1/
Informal acknowledgment
2/ Paternity action
2}
Step 2
1}
2}
b]
6)
Legitimate filiation
Same as Step 1
Means compared: same
Spousal rights
a)
Definition: who is a spouse?
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____________________________ PART II: SUCCESSIONS ____________________________
1]
True spouse
2]
Putative spouse
a]
Definition
b]
Varieties of putative spouses
1}
Putative spouse in absolutely null marriage (CC art. 96)
a}
Definition of absolutely null marriage (CC art. 94)
1/
Prior marriage (CC art. 88)
2/ Same sex (CC art. 89)
3/ Nearness of relation: one can't marry an
ascendant, descendant, or collateral w/in
4th degree (CC art. 90)
b}
Prerequisites for putative status
1/ General rule (CC art. 96, ¶ 1 & cmt. (d))
2/ Exceptions:
a/
If impediment was prior marriage,
putative status continues even after
loss of GF until declaration of nullity or
remarriage (CC art. 96, ¶ 2)
b/ Putative status completely foreclosed,
notwithstanding good faith, if
impediment is same sex (CC art. 96, ¶
4)
2}
Putative status in relatively null marriage
a}
Definition of relatively null marriage (CC arts. 97
& 93)
1/
Duress (CC art. 93)
2/ Incapacity of discernment (CC art. 93), e.g.,
insanity, mental retardation, intoxication,
naivèté (comments (c) & (d))
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____________________________ PART II: SUCCESSIONS ____________________________
b}
Prerequisites for & duration of putative status:
continues until marriage is declared null (CC art.
97)
c]
Effects: “civil effects” of marriage (CC arts. 96 & 97)
d]
Illustration
SH 33. Olide married Clodice. Together, they had one child, Cherie. The Olide sued Clodice for
divorce. Though he got a preliminary default against her, the court, unbeknownst to the couple, ever
entered a final default judgment. Olide, believing the divorce was final, later married Desirée, who
likewise believed Olide was divorced. Olide and Desirée lived together for 21 years, during which time
Desirée, using community funds, bought a tract of land. Then Olide died. How should the tract of land,
including Olide’s interest in it, be distributed? Why? See the jurisprudence that follows:
________
Prince v. Hopson,
230 La. 575, 89 So.2d 128 (1956)
HAWTHORNE, J.
Plaintiff-appellee, Clementine Prince, instituted this proceeding seeking to be
declared the owner of a lot of ground purchased by her during the existence of her
marriage with James Brough, deceased. The defendants are Victoria H. Albert,
surviving legal wife of James Brough, and Irita B. Hopson, sole issue of the marriage
between Brough and Victoria H. Albert and the only living child of Brough. The
defendants claim the ownership of, or an interest in, this property.
The facts giving rise to this litigation are as follows: James Brough, the
deceased, married Victoria H. Albert on December 31, 1907, and of this marriage one
child was born, Irita Elizabeth Brough, now wife of Willie Ray Hopson. In January,
1919, James Brough filed a suit against his wife for an absolute divorce on the ground
of seven years separation. A preliminary default was entered in that case, but final
judgment was never rendered. Clementine Prince, relying upon the statement of James
Brough that he was divorced from his first wife, was by a minister of the gospel
married to Brough on May 19, 1919, after a marriage license to perform said ceremony
had been duly obtained. After this marriage Clementine Prince and James Brough
lived together as man and wife until his death on May 18, 1940, for a period of
approximately 21 years, and in fact Clementine Prince did not know that Brough had
not been divorced until she attempted to borrow money on the property here involved
in 1955, some 15 years after his death. Moreover, his first wife, Victoria Albert,
believed that she and the deceased were divorced, and she had contracted a marriage
with Elijah Albert.
The property here involved, which is a lot of ground in the City of New Orleans,
was sold according to the deed by Elizabeth McCluskey to Clementine Brough on
March 4, 1939, during the time she and James Brough were living together as husband
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____________________________ PART II: SUCCESSIONS ____________________________
and wife. Although this deed names the vendee as Clementine Prince, wife of James
Brough, it contains no recitation of paraphernality. The consideration named is $215
in cash. . . .
Under these circumstances there is only one conclusion that can be reached, and
that is that both Clementine Prince and James Brough were in good faith at the time
their marriage was contracted, although this marriage was a nullity.
Since the marriage of Clementine Prince and James Brough was contracted in
good faith, under Article 117 of the Civil Code this marriage produced its civil effects,
and the existence of a community of acquest and gains between them is such a civil
effect.
It is well settled in this state that property purchased in the name of either spouse
during the existence of the community of acquest and gains is presumed to be
community property. Arts. 2334, 2402, La. C.C.; Salassi v. Salassi, 220 La. 785, 57
So.2d 684.
...
Since Clementine Prince and James Brough both contracted their null marriage in
good faith, the question then arises: How should we divide this property acquired
during the coexistence of both the first and the second marriage, or during the
existence of the putative community? The claimants are Victoria H. Albert, the legal
wife; Irita B. Hopson, legitimate child of the first marriage, and Clementine Prince,
putative wife of James Brough.
In Waterhouse v. Star Land Co., Ltd., 139 La. 177, 71 So. 358, 360, this court
said: "It is a fixed rule of property in the state of Louisiana that property which has
been earned during the existence of a putative marriage belongs one half to the legal
wife and the other half to the reputed wife. The children of the respective marriages
have therefore no interest in it * * *"
The famous case of Patton v. Cities of Philadelphia and New Orleans, supra, is
the source from which this rule of property springs. In that case Abraham Morehouse
was married to Abigail Young, by whom he had children and whom he abandoned in
the State of New York. He came to Louisiana and here in bad faith as clearly shown
by the facts contracted a second marriage with Eleonore Hook, untruthfully
representing himself as a widower. Children were also born of this putative marriage.
In disposing of the property left by Morehouse at his death, this court applied the
Spanish law, and concluded that the property should go one-half to the legal wife and
one-half to the putative wife, the forced heirs getting nothing, on the theory that
Morehouse had wronged the second wife by creating a bigamous marriage and for his
wrong the second wife had a claim in damages against the husband equal to his share
in the community. The court applied the Spanish law because Morehouse's death in
1813 gave rise to the cause of action before the incorporation in our Civil Code of
Arts. 117 and 118 (Art. 119 and 120 of the Code of 1825). . . .
The holding in the Patton case has been followed ever since by this court, even
though, as pointed out in Hubbell v. Inkstein, supra, decided in 1852, the decision in
the Patton case was under the former laws of the country (Spanish) which had been
repealed at the time of the decision of this court in the Hubbell case. The court in the
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____________________________ PART II: SUCCESSIONS ____________________________
Hubbell case deduced that the reasoning of the Patton case had equal force under both
the Spanish law and the system of law existing at the time of that decision. We note,
however, that in the Hubbell case the court did not mention Arts. 119 and 120 of the
Code of 1825 (now Arts. 117 and 118).
Be that as it may, in none of the cases cited above which rely on the Patton case
and apply the rule of law there announced, was the good faith of both parties to the
second marriage considered or discussed in connection with Art. 117 of the Civil
Code. Moreover, in these cases the good faith of both parties to the second marriage
was not a factor. Again, where the property acquired during the putative marriage was
divided between the two wives, the facts in most of those cases clearly show that the
husband in contracting a second marriage was in bad faith. Such is not a fact in the
case which we now have under consideration, as both parties to the second marriage
here were in good faith, and the rule of law announced in the Patton case cannot be
reconciled with the express provisions of Art. 117 of our Civil Code in regard to a
situation where both parties are in good faith. To follow the Patton rule in the instant
case and to give to the putative wife the husband's one-half of the property acquired
during the existence of the putative community would be to deny to him and his heirs
the civil effects of the second marriage, in the teeth of the provisions of Art. 117.
James Brough being in good faith in his second marriage, this marriage also
produced its civil effects as to him, and accordingly he became the owner of an
undivided one-half of all property acquired during the existence of the putative
community, for under the provisions of Art. 2402 of the Code community property
consists, among other things, of the estate which the parties to the marriage may
acquire during such marriage by purchase, even though the purchase be only in the
name of one of the spouses and not of both. Thus, although the property in the instant
case was purchased in the name of the second wife, it fell into the putative community.
Accordingly when James Brough died one-half of this property belonged to his
succession. He was survived by one child, Irita B. Hopson, who therefore inherited his
share of the community property under Art. 915 of the Civil Code.
...
We have disposed of James Brough's one-half of the community property
acquired during the putative marriage, but the serious question remains: What division
shall we make of the remaining one-half of this property?
As we have heretofore pointed out, James Brough's second wife, Clementine
Prince, was also in good faith when the marriage was contracted and remained in good
faith until after his death. Under the provisions of Art. 117 she would therefore be
entitled to one-half of all property acquired during the existence of the putative
community although the marriage was a nullity. However, during this entire time the
legal community was also in existence, and it likewise was not dissolved until James
Brough's death, and during the coexistence of both these communities the property
was acquired. Under Art. 2406 of the Civil Code the effects which compose the
community of acquets and gains are divided into two equal portions between the
husband and the wife or between their heirs at the dissolution of the marriage.
Consequently under the provisions of this article Victoria Albert, the legal wife, is also
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____________________________ PART II: SUCCESSIONS ____________________________
entitled to the remaining one-half of such property. The provisions of our law which
give to each of these wives one-half of the property are of equal dignity and rank.
However, it is impossible to give to each wife under these laws one-half of the entire
property, as there remains to be divided between them only one-half of the property
because James Brough's one-half is inherited by his daughter. The question then
presented is: How should the remaining one-half of the property be divided between
the legal wife and the putative wife? . . .
Under the views of Aubry and Rau; Baudry-Lacantinerie; Colin and Capitant; and
Ripert and Boulanger, where both parties to a putative marriage are in good faith the
husband is entitled to his share of all property acquired during the existence of both the
legal and the putative marriage under Art. 201 of the French Code, and accordingly he
or his heirs take as civil effects one-half of the entire property acquired from the date
of the legal marriage to its dissolution. See Colin et Capitant, 1 Traité de droit civil
(1953) 375, no. 623; Ripert et Boulanger, 1 Traité élémentaire de droit civil de Planiol
(5e ed. 1950) 384, no. 1050; Baudry-Lacantinerie, 3 Traité de droit civil (3e ed. 1908)
505, nos. 1912-1924; Aubry et Rau, 7 Cours de droit civil francais (5e ed. 1913) 68-71.
These commentators then point out that, as to the remaining half, the putative wife can
have no claim to any portion of the property acquired during the legal marriage, for
this would be outside her community, whereas the legal wife certainly is entitled to
one-half of all property acquired during the legal marriage. As to the property
acquired during the putative marriage, the legal wife under the provisions of the law is
entitled to one-half thereof since her marriage was in existence at that time and the
community was not dissolved until the husband's death. However, under the
provisions of Art. 202 of the French Code the putative wife because of her good faith
is also entitled to this same one-half of the property. The commentators then say that
since these claims are equal in nature on the same object, the only division that can be
effected is to split the property acquired during the putative community and give each
wife one-half. See Aubry et Rau, 7 Cours de droit civil français (5e ed. 1913) 75, 76,
n. 24; Baudry-Lacantinerie, 3 Traité de droit civil (3e ed. 1908) 516-518, nos. 19301932. See Comment, The Civil Effects of a Putative Marriage, 1 Loy.L.Rev. 54
(1941).
Under the view which these commentators deem to be the most equitable, in the
instant case the legal wife, Victoria H. Albert, and the putative wife, Clementine
Prince, would each be entitled to an undivided one-fourth interest in the property in
question.
The French commentators also allow the children to inherit community property
from a father who contracted a second marriage in bad faith, which seems to us to be
correct under Art. 118 of our Code. See Colin et Capitant, 1 Traité de droit civil
(1953) 376, no. 624; Comment, The Civil Effects of a Putative Marriage, 1 Loy.L.Rev.
54, 67 (1941). Of course we are not here called upon to, nor do we think we should,
go that far because of our decision in Patton v. Philadelphia and the cases which
followed the ruling announced there -- holding, in effect, as we have pointed out
above, that children do not inherit community property acquired by their father during
a second marriage contracted in bad faith. However, we see no reason why we should
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____________________________ PART II: SUCCESSIONS ____________________________
not accept such a solution where both parties to the marriage are shown to be in good
faith, and by adopting this solution we certainly are following the provisions of Art.
117 by allowing to the husband who is in good faith the civil effects of his second
marriage, and we are also following the provisions of the article as to the putative
wife's share as far as we can possibly do so by recognizing her to be entitled to the
civil effects of her marriage, which she also contracted in good faith. . . .
________
b)
Rights
1]
Normal case: monogamy (only one spouse, either genuine or
putative)
a]
Heir to full ownership
1}
Separate property
2}
Community property
a}
Legislation (CC art. 889).
b} Jurisprudence
________
Paline v. Heroman,
211 La. 64, 29 So.2d 473 (1946)
KENNON, Justice.
The judgment appealed from rests on an interpretation of Article 1022 of the
Revised Civil Code.
Joseph Paline died intestate, leaving his widow and their two sons, Paul and
Emile, and certain community property, title to part of which is at issue in the present
suit. By authentic act, both sons renounced the succession and their mother was
placed in possession of the entire estate--one half in her own right and one half by
virtue of the childrens' renunciation. Upon the widow's death, she bequeathed to her
two children (the ones who had renounced in her favor) the real property owned by the
community. Emile Paline, plaintiff in this suit, through a partition with his brother,
Paul Paline, acquired title to a 2.83 acre tract out of this property and on December 5,
1945, he entered into an agreement with Fred I. Heroman, Jr., the defendant to sell him
this tract of land. This suit was filed for specific performance when Heroman refused
to accept plaintiff's title to the property as merchantable. Mrs. Virginia Paline Sherrill,
one of the five children of the plaintiff's brother, Paul Paline, intervened, in the suit,
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____________________________ PART II: SUCCESSIONS ____________________________
claiming as heir of Joseph Paline, her grandfather, an undivided one tenth interest in
the property. The lower court rendered judgment in favor of defendant, Heroman,
rejecting plaintiff's demand for specific performance and recognizing intervener, Mrs.
Virginia Paline Sherrill, as owner of an undivided one tenth interest in the property.
Emile Paline appealed.
The question presented is whether the husband's portion of the community
property, after the renunciation's of his children, passed to the surviving spouse in
community or to the five children of the renouncing heir, Paul Paline. (Mrs. Sherrill,
intervener, is one of these children.)
Plaintiff argues that when the two heirs of Joseph Paline renounced his
succession, which consisted entirely of community property, title to his undivided one
half interest in the property vested in his surviving widow in community under the
provisions of Articles 915 and 1022 of the Revised Civil Code. Article 915 provides:
'When either husband or wife shall die, leaving neither a father nor mother nor
descendants, and without having disposed by last will and testament of his or her share
of the community property, such undisposed of share shall be inherited by the
surviving spouse in full ownership. In the event the deceased leaves descendants, his
or her share in the community estate shall be inherited by such descendants in the
manner provided by law. Should the deceased leave no descendants, but a father and
mother, or either, then the share of the deceased in the community estate shall be
divided in two equal portions, one of which shall go to the father and mother or the
survivor of them, and the other portion shall go to the surviving spouse, who, together
with father or mother inheriting in the absence of descendants, as provided above, shall
inherit as a legal heir by operation of law, and without the necessity of compliance
with the forms of law provided in this chapter for the placing of the regular heirs in
possession of the succession to which they are called.'
Under Article 915 quoted above, the sons inherited (subject to their acceptance)
all of their father's portion of the community.
Section 2 of Chapter 6 of the Revised Civil Code deals with the manner in which
successions are accepted, and renounced. The articles of this chapter dealing with the
rights of creditors and heirs who benefit by the renunciation are numbers 1021, to
1928, inclusive. Article 1022 reads: 'The portion of the heir renouncing the
succession, goes to his coheirs of the same degree; if he has no coheirs of the same
degree, it goes to those in the next degree. This right of accretion only takes place in
legal or intestate successions. In testamentary successions, it is only exercised in
relation to legacies, and in certain cases.'
Mrs. Sherrill, the intervener, contends that since Paul Paline and Emile Paline,
who were all of the coheirs of the same degree, renounced, the succession under the
above-quoted article 'goes to those in the next degree' and, therefore, she and her
sisters and brothers, five in all, being all the grandchildren of the deceased, are 'those
in the next degree' and inherit in their own right. The contention is based upon the
theory that the phrase in Article 1022, R.C.C., 'next degree' refers to persons who are
related by blood in the next degree to the renouncing heir.
At the time the Civil Code was adopted, only those who were kinsmen of the
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____________________________ PART II: SUCCESSIONS ____________________________
deceased were called to his succession and, hence, the word 'degree' was generally
conceded to be limited to people having blood relationship to the decedent. Article
915 was later amended to include the wife and as amended again in 1938 it provided
that she '* * * shall inherit as a legal heir by operation of law, and without the necessity
of compliance with the forms of law provided in this chapter for the placing of
irregular heirs in possession of the successions' to which they are called.' Thus, a
study of Article 915 (as amended), the other articles in the chapter relating to
renunciation of successions, and a careful analysis of Article 1022 leads to the
conclusion that the expression in Article 1022 'those (coheirs) in the next degree' refers
to the heirs of the de cujus who are next in rank or right to inherit in the succession
which the heir was renounced, By this amendment, the wife was virtually--for
succession purposes as set forth in Article 888--placed in the same category as a blood
relation to the deceased.
To hold that the effect of the 1938 amendment is to include the wife in the
definition of 'those in the next degree' in Article 1022, is not inconsistent with the
dictionary given meaning of the word 'degree'. The first and second definitions of the
word 'degree' in Webster's New International Dictionary, 2d Ed., are: '1. a step, stair,
or rung; now a step-like member of a series; a tier, bank, rank or the like. '2. A step or
station in any series; a point or stage.' Also, '4. A remove in the line of descent,
determination in the proximity of blood; one remove in the chain of relationship; as a
relation in the third degree.' In the Winston Dictionary, Encyclopedia Edition, the first
definition of the word 'degree' is a step or grade in a series. It is in full conformity
with its dictionary meaning to hold that 'next degree' in Article 1022 can mean those
(coheirs) who are next in rank or order among those entitled to inherit under the
provisions of Article 915.
The renunciation made by Paul Paline and Emile Paline contains the following
language: 'They now make public, express and formal renunciation of and to the
succession of the deceased, Joseph Paline, to be used and to serve and avail as the
occasion shall require'. Immediately following this renunciation in the admitted
statement of facts, it is set forth that Mrs. Denise Granier Paline was recognized in the
succession proceedings as surviving spouse and sole heir at law of all the property
belonging to the community of acquets and gains. Thus, it seems that it was the clear
intention of the renouncing children to vest full, complete, and irrevocable title in their
mother to all property of whatever nature left by their father, and to do so to the
exclusion of their own children.
The interpretation that the beneficiary of a renunciation under Article 1022 is,
when all the coheirs entitled to the succession in the first instance renounce, the heir
next called to the succession by operation of law rather than the kinsman next in kin is
indicated by a sentence under the discussion of 'Seizin of Heirs', page 199 of the
Alfred Bonomo Edition of Saunder's Lectures on the Civil Code: '* * * Now if the heir
who is called to accept, renounces then the seizin goes to the heir in next order of
right.'
This interpretation of Article 1022 gives meaning to the provisions of the
preceding Article (1021) which sets forth the rights of creditors of a renouncing heir.
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____________________________ PART II: SUCCESSIONS ____________________________
The third paragraph of that article reads: 'If, therefore, after the payment of the
creditors, any balance remain, it belongs to his coheirs who may have accepted it, or if
heir who has renounced be the only one of his degree, it goes to the heirs who come
after him.'
The article does not mention 'those in the next degree of blood relationship'. The
expression 'the heirs who come after him' is consistent with the interpretation of
Article 1022 that 'those in the next degree' refers to 'those in the next category or rank'
(as heirs of the decedent).
Article 946 declares that if an heir rejects (renounces) the succession, he is
considered as never having received it, and it follows that the rights of other heirs
become the same as if the renouncing heir had never been an heir, in fact, as if he had
never existed. Nor can the grandchildren inherit by representation the portion
renounced by the living sons, as there can be no representation of a living person.
Article 899, R.C.C.
...
Reading and considering together the provisions of Article 915 which deals with
the rights of heirs to inheritance of community property and sets forth as recipients,
first descendants and secondly, ascendents and surviving spouse as coheirs, and Article
1022, which states that the portion of renouncing heirs goes 'to those in the next
degree', we conclude that since all the children of the deceased spouse renounced the
succession, the surviving widow (in the absence of parents) became recipient of the
accretion as she is the heir in the next rank or degree, under the provisions of Article
915, R.C.C.
________
NOTES
1. When the Paline decision (to which two justices vigorously dissented) was
announced, it was immediately condemned by nearly all (if not all) scholars of
Louisiana successions law. Had I been around then, I, too, would have joined in the
denunciation. Seldom in the annals of Louisiana jurisprudence have the courts played
as fast and loose with a legislative text or ignored legal history and legal science to
such an extent as the majority did in that case. If ever there was a supreme court
decision that was wrong, this was it.
2. Since Paline was (mis)decided, much of the legislation that the majority
therein “interpreted” – most notably, CC arts. 915, 946, & 1022 – has been revised. In
place of those three articles we now have, respectively, article 889 (rev. 1982), 954
(rev. 1999), & 964 (rev. 1999). Have these new articles in effect overruled Paline?
Why or why not?
________
b]
Heir to usufruct
1}
In general
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____________________________ PART II: SUCCESSIONS ____________________________
2}
Definition (CC arts. 535-539, 551).
3}
Type of usufruct
a}
Classification: legal (CC art. 890 comment (b))
b}
Significance
1/
Duration: until death or remarriage (CC arts.
607 & 890)
2/ Security
a/
General rule: no (CC art. 573)
b/ Exception: a "forced heir" who is not the
child of the surviving spouse (i.e., stepchild) can demand security (CC art.
1514)
3/ Tax
4}
Property affected
a}
Only former community property . . .
b}
of which the deceased did not dispose by
testament (CC art. 890)
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