ON REHEARING.
1. Article 203 of the Civil Code requiring that the acknowl-edgement of an illegitimate child shall be made by a declaration before a notary public in the presence of witnesses, has reference to acknowledgments by the father, the law permitting the acknowledgment of an illegitimate child by the mother to be shown by any competent evidence.
1. i When the physician, midwife or other attendants at the accouchement aie dead or cannot be found, maternal descent can be shown by the testimony of persons who saw the child shortly after its birth or when very young in the arms of its mother who then as well as later always acknowledged the child as being hers.
Former decree set aside and judgment affirmed.
ESTOPINAL, J.A rehearing was had in this case in so far as the question of identity of maternity and the subsequent acknowledgment of Lavinia Johnson plaintiff herein by her mother Louisa Austin.
*153Upon reconsidering this issue we have come to the conclusion that there is error in our former opinion which we shall now proceed to rectify.
Defendant claims to have acquired by purchase from Henry Austin the whole of the property in litigation.
The proof is that Austin was married to Louisa Austin and that the property was acquired during the marriage. The property then becomes that of the community and Henry Austin could therefore sell no more than his interest therein.
Lavinia Johnson claims to be the illegitimate but duly acknowledged child of Louisa Austin, beside claiming one-half the property as the heir of her mother, contests the right of defendant to any part of the property on the ground that there never was a valid conveyance of the property by Austin to Mattie. We erroneously held in our previous opinion that the acknowledgment of an illegitimate child must be made in conformity with the article of the Civil Code (203) which provides as follows:
“The acknowledgment of an illegitimate child shall be made by a declaration executed before a Notary Public in presence of two witnesses by the father and mother or either of them whenever it shall not have been made in the registering of the birth or baptism of such child.”
Upon investigation however we find the law and jurisprudence to be that the article quoted above refers to acknowledgments by the father, but that the aclcnowledg_ ment by the mother may be shown and established by any competent evidence 42 A. 842-30 A. 808. There is abundant proof in this record to prove :
1st. That Henry Austin was married to Louisa Austin.
2nd. That the-property in dispute was acquired during the marriage and is, therefore community property.
3rd. That Austin did sell and transfer the property to Mattie.
4th. That Lavinia Johnson is the child of Louisa Austin and was duty acknowledged by said Louisa Austin as such.
Under this state of facts and the law governing herein, the defendant is entitled to the undivided one-half of the property, having acquiredsame from Henry Austin by purchase, and La-vinia Johnson is entitled to the other undivided one-half as heir of her mother Louisa Austin by whom she was duty acknowledged.
January 28, 1907. Rehearing refused February 18, 1907. Writ refused by Supreme Court April 4, 1907.For these reasons it is now ordered and adjudged that our former decree be and it is hereby annulled and set aside, and it is now ordered that the judgment appealed from be and it is hereby affirmed.
Former decree set aside and judgment appealed from af_ firmed.