The judgment of the court was pronounced by
Preston, J.Louis Dupré, a colored man, departed this life in New Orleans without legal ascendants or descendants. C. W. Caruthers and others claim his succession, alleging that they are his natural brothers; and a niece of the deceased by a natural brother, claims through him. In opposition to them fhe estate is claimed by Marie Lorenza Dupré, who alleges that she is the natural daughter of the deceased. She was neither acknowledged by him in baptism nor before a notary public and two witnesses, but offered to prove her paternity by parol and other testimony not amounting to a formal acknowledgment.
If any one of the collateral claimants have shown their relation to the deceased, it raises the question, whether they or the unacknowledged natural daughter shall inherit the estate.
The deceased, Louis Dupré, and Honoré Caruthers were baptised as sons of the same mother; and Armantine Dupré was baptised as the daughter of Celeste, whom her uncle, deceased, buried as his sister, declaring her before the recorder of deaths to be his sister.
The case therefore clearly raises the question, whether the natural brothers and niece of the deceased, or his unacknowledged natural daughter are entitled by law to his inheritance.
An article in the old code, precisely similar to article 916 of the present code, gave the estate of a natural child deceased without posterity to the father or mother who has acknowledged him. In the case of Pigeau v. Duvernay, a contest arose between the natural brothers and sisters and the natural father of a deceased child, for his succession. The father had incontrovertible evidence of his relationship, but had not acknowledged him before a notary and two witnesses, nor in baptism.
Judge Martin, in delivering the opinion of the late Supreme Court, said: “The acknowledgment is required to be formal: the manner of making it is pointed out by law. This formal or legal acknowledgment differs from the incontrovertible evidence of natural paternity resulting from the res judicata. The latter gives a right to alimony; the former to that, and sometimes to the inheritance of'the parent, in others to legitimation. As the evidence on which courts of justice are authorized to pronounce the natural parentage is weaker than that which results from a formal acknowledgment, and is not always morally conclusive, the legal consequences of adjudged and acknowledged parentage are thus different,” 4 M. R. 266.
*157That was the case of a natural father claiming the estate of his unacknowledged child. In this case an unacknowledged child claims the estate of her natural father. The 913th article of the Civil Code declares, that “natural children are called to the inheritance of their natural father who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations nor surviving wife, and to the exclusion only of the State. In all other cases they can only bring an action against their natural father or his heirs for their alimony.”
This provision of law, that acknowledged natural children can inherit only to the exclusion of the State, is equivalent to the declaration, that natural children not acknowledged, cannot inherit at all. Indeed, inheritance is the creature of express law; and there is no law declaring that an unacknowledged natural child can inherit from his father. So, to enable the natural child to take by donation or by the will of his father, our code expressly requires that the child shall have been acknowledged by the parent. Article 1473. It is true, a general impression exists, that the natural child not acknowledged may receive by donation inter vivos or by will, from his parents, the proportions of his property mentioned in this article, in the cases mentioned. Whether this impression would be sanctioned by the decision of our courts it is not necessary now to say. It may be remarked, however, that there is a clear distinction between the capacity to receive by inheritance and by donation. The first is the creature of law— without which it could not exist; the last is the creature of will, when not prohibited by law. Still, if the decision should be in accordance with the general belief, it must be acknowledged that the term aclcnmvledged in this particular article of the code would be surplusage.
But if any other interpretations were given to the articles of our code than that given by our late Supreme Court, the terip acknowledgment, so often used in the code, would have no meaning in any article. The articles above mentioned, in relation to inheritance, are so clear and free from ambiguity that it is impossible to yield to the conclusions of the French tribunals upon similar articles of the Napoleon Code, that a judicial recognition is equivalent to the voluntary acknowledgment of the parent. And, carrying out the idea of Judge Martin, we can well conceive that, there being no absolute certainty of the father of the natural child, the Legislature would not permit the laws of inheritance to depend on such uncertainty; and especially when the proof of the descent leads to disreputable investigations in court, aggravated by all the indelicacy which cupidity can excite.
That the latter consideration had great weight, can be inferred from the 7th law, 15th tit. of the 4th Partidas. This law authorizes the parent to legitimate his natural child by writing; but forbids him to state that he is a natural child, under the penalty that the legitimation shall be invalid. It contains other curious provisions of the same kind, and was reenacted in toto by our Legislature in 1831, although not reported by the compilers of our digests.
The case of Lange et al. v. Richoux et al., 6 L. R. 560, is greatly relied upon to show, that the natural child may prove his paternity in order to inherit his father’s estate in preference to the natural brothers and sisters and their descendants. And our late Supreme Court certainly use general expressions to that effe'ct. But those general expressions are to be referred to the case then before the court. In it natural sisters were allowed to prove their maternal descent, for the purpose of inheriting from each other under article 917 of the code, which prescribes, that “if the father and mother of the natural child died before him, *158the estate of such natural child shall pass to his natural brothers and sisters or to their descendants.”
The same proof was allowed on behalf of the natural brothers and sisters of the deceased in the present case. It seems strange, it must be confessed, that natural children may inherit from each other through their common mother, when they could not inherit from the mother herself, unless she had duly acknowledged them; and absurd, that a natural child should be prohibited from proving his maternal parentage, except by his mother’s avowal of her shame, on record, or by baptism before the church, as required by article 912 of our code, in order to inherit to the exclusion of ascendants and collaterals. But we know the objects of the Legislature : in the first place, to honor matrimony, which is of such incalculable importance to society; and, in the next place, to discourage concubinage, which is the cause of so much dissoluteness and evil. To prevent it, the Legislature hold out the strongest motive which can influence a parent— the legal disinherison of his offspring, unless he avows his shame before a notary public and witnesses, or in the face of the church.
It is true, the legislation has ever failed in this object; for, probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt. And the only effect has been, that the guilty parents have eaten the grapes, while the innocent children’s teeth, with tears in their eyes, have been set on edge. But still, it is the law, and must be obeyed until it is repealed.
The judgment of the district court is therefore affirmed, with costs.