concurring. This suit is brought by Maria Dolores Conté, the daughter of J. M. Caballero, to annul the will of her father, and to be put in possession of his succession on the ground that she was legitimated by the marriage of her parents after the date of the testament.
The evidence establishes that J. M. Caballero lived in this city in concubinage with Carolina Yisinier, a colored person; that the plaintiff, issue of this illicit connection, was born in February, 1840; that in 1852 Caballero made the will which is attacked in this suit; and that in 1856 he removed to Spain, the place of his nativity, with the purpose to live there permanently.
On his way to Cadiz, in 1856, Caballero stopped at Havana and there he married Caro.ina Visinior, the mother of plaintiff. Three years after his removal to Spain he returned to New Orleans, where- he died in 1866. The plaintiff has never returned to Louisiana;, she still resides in Spain.
The evidence in the record satisfies me that the plaintiff was legitimated by1 marriage, according to the laws of Spain, in 1856. Being legitimate m Spain, I maintain that the same character will belong to her in Louisiana and everywhere. Story’s Conflicts, sec. 1'05.
Mr. Story says: “It seems, then, generally admitted by foreign jurists,-that as the validity of the marriage must depend upon the law of tiie country where it is celebrated, the status, or state, or condition of their offspring, as to legitimacy or illegitimacy, ought to depend on the same law; so that, if by the law of the plaee of the marriage (at all events, if the parents were then domiciled there), the offspring, although born before marriage, would be legitimated, they ought to be deemed legitimate in every other country,nor all purposes whatsoever, including heirship to immovable property.” Story’s Conflicts, *579sec. b. 93. And he adds: “ This is certainly the doctrine maintained by many, perhaps a large majority oi foreign jurists.” Sec. c. 93. And again he says: “ The same doctrine is avowedly adopted by the courts of England. Lord Stowell on one occasion in effect maintained that by the law ot England the status or condition oí a claimant must be tried by reference to the law of the country where that status originated. The same doctrine was adopted by the judges of England in giving their opiniou to the House of Lords. They admitted in the most.solemn form, that the legitimacy or illegitimacy of a person must be decided by the law of the place where the marriage was celebrated; and that if by the law of that place (for example Scotland) a son born before tiie marriage between them be legitimated, that status of legitimacy must be deemed equally true and valid everywhere else where ^ the question might arise.” Sec. 93, e.; sec. 93, m. And the same author says (sec. 103): “ Hence we might deduce, as a corollary, that, in regard to questions ot minority or majority, competency or ineoinpetency to marry, incapacities incident to coverture, guardianship, emancipation and other personal qualities or disabilities, the law of the domicile of birth, or the law of any acquired and fixed domicile, is not generally to govern, but the lex loci contractus ant actus, the law of the place where the contract is made, or the act done.”
In this State this principle is substantially announced in the textual provisions of the Codes. Article 10 of the* Civil Code declares that “ the form and effect of public and private written instruments are governed by the laws and usages of the country where they are passed or executed.” C. P., art. 13. That is, the validity as well as the effect of contracts must be governed by lex loci eontraat%is. The contract of marriage between the plaintiff’s parents and its effects must therefore be governed by the laws of Spaini/
This principle has often been affirmed by this court. 3 Martin 66, Le Breton v. Nanchet ; 8 M. 134 ; 2 N. S. 93 ; 4 N. S. 1 ; 5 N. S. 570, Saul v. His Creditors ; 19 La. 216 ; 11 La. 464, Andrews v. His Creditors ; 8 R. 407. In Scott vs. Key, reported in 11 An., this court said : “If it be true that a general law of the place of domicile changing the status of its citizens according to circumstances is a personal statute accompanying the party to every other country — provided the circumstances which operate such change have occurred before the change of domicile, which we consider to be the settled doctrine in Louisiana — a fortiori, is a special law removing a disability from a particular citizen by name such a statute.” * * “ The maxim cited by Story (Conflict of Laws, sec. 51) from Boullenois, ‘habilis vel inbabilis in loco domicilii est habilis vel inhabilis in omni loco,’ must, therefore, be deemed law in Louisiana.” And it was held in the same case that the Arkansas statute (which was a personal statute) did not conflict with the statute of distributions ot Louisiana, which is a real statute.
*580The ease of Dupre v. Boulard, 10 An., p. 411, relied on by the defendants, is not in point. It appears from 'the opinion that the marriage in that case had been made in fraud of our laws. I consider the question presented by the facts of this case the same as if Caballero and his wife had always resided in Spain. In that event, could the plaintiff claim the aunullment of her father’s testament, made anterior to her legitimation ? I am of opinion that she could. Article (1698) 1705 C. C. declares that “ the testament falls by the birth of legitimate children of the testator posterior to its date.”
The French text is, “ le testament est caduc quand il est survenu des enfens depuis qu’il a ótó fait.”
It is evident that the meaning of this article is that the will should fall if the testator should have children capable of inheriting from him after the date of the will/ At the period when the will was made Caballero had no child who could inherit his estate; after the legitimation of the plaintiff he had then such a child. Legitimation is a fiction of the law,, whereby one born out of lawful Wedlock is considered the offspring of the marriage between the parents./ Article 199 of the Civil Code declares “ children legitiihated by a subsequent marriage have the same rights as if born during marriage.” The Erench text is an exact copy from the Code Napoleon, and is as follows: “Lesenfans lógitjmés par le mariage subséquent ont les mémes droits que s’ils étaient nés de ce mariage.” It is evident that there is au inaccuracy in the.English translation; it should have been translated “ as it born of that marriage.” This accords with the evident intention of the lawmaker, and with the views of the commentators ou the Code Napoleon. Commenting on article 953 of the Code Napoleon, Mareadé says: “La légitimation est une fiction; mais cette fiction au lieu de taire remonter le mariage au jour de la conception ou seúlement au jour de la naissance, fait redescendre et la conception et la naissance au jour du mariage.” 2 Mar-cad é, p. 45. Zacharie says: “La légitimation est une fiction légal, mais elle n’a jamais d’effet rétroactií; elle ne remonte ni au jour de la conception ni au jour de la naissance; elle ne date qu’á partir du mariage.” P. 675. “ C’est le jour du mariage qui est le jour de la conception et de la naissance legitimes: Dies nuptiarum, dies est conceptionis et nativitatis legitim®.” 2 Mareadé, p. 46. Pothier, vol. 7, Traité des Donations Entre-vifs, p. 489, sec. 111.
This court said in Lewis v. Hare: “ The testament falls by the birth of legitimate children of the testator posterior to its date. The reason of this provision is not given by the lawgiver, but is obvious. It is founded upon the reasonable presumption that the testator would not have given his property to others had he foreseen that he would afterwards have offspring. It would not be,easy to suggest a case *581more strongly illustrative of the wisdom of the law, which supplies by its own foresight the want of foresight of the testator, than the one before us. If this will should be carried into full effect thp entire estate of the testator would be absorbed in legacies, and his child be, left destitute.” 11 An. 378.
All that was said in that case applies with equal force in this case. I can not believe that the word “ birth,” in the English (“ s’il est sur- ■ venu des enfans ” in the French; text, was intended to refer only to the natural birth of children, but to the advent of legitimate children by birth or by operation of law.
The laws of Louisiana never prohibited persons from inheriting on account of their color. “ All free persons may transmit their estate ab intestato and inherit irom others. Slayes alone are incapable of either.” C. C., article 945.
“Legitimate children or their descendants inherit from their father and mother,” etc. C. C,, article 898.
It is not against the policy of the laws of Louisiana, therefore, to permit the plaintiff, a legitimated child, to tafee by inheritance the property of her father.
Neither has it ever been the policy-of Louisiana to attempt to regulate marriages beyond her territorial jurisdiction.
I therefore concur in the opinion of Mr. Justice Taliaferro.