On the Merits.
Appellee claims that the court must presume, in the absence of an affirmative showing to the contrary, that when the court acted on her application it had before it evidence of all the facts necessary *714to have been shown to authorize the order. Nugent vs. Stark, 34 An. 631, and “Ira re Fazende & Seixas praying for a monition,” 35 An. 1145, are cited in support' of this contention. The order was granted upon a petition with no documents annexed thereto and no affidavit as to the truth of the allegations of the petition. It was evidently an ex parte order given upon the hypothesis that there were no conflicting rights. Applications for natural tutorship are usually acted upon “as of course” on that supposition, but the party obtaining them, under such circumstances takes the risk of their being appealed from if, in fact, there should be opposing interests. We think the present case of that character. The child in question was unquestionably adopted by Mrs. Haley — appellees pleadings admit that fact. If appellee be its mother the adoption was not only made presumbably with her consent, but under the conditions required or permitted by law for adoption. The mother was -fully advised that the adopting mother was dead, and that in her will she had appointed Ker as testamentary tutor. With this knowledge on her part we do not think she should have been permitted to obtain an order appointing her tutrix, ignoring the adoption and what were, at all events its possible, legal results and ignoring the pretensions and claims which she must have known Ker could have set up adversely to her claims.
It is by no manner of means clear that the mother would have been appointed tutrix in a contest raised between herself and Ker claiming as a testamentary tutor appointed by Mrs. Haley. It is certainly not sufficiently clear to have been assumed or to be now assumed as an undeniable uncontrovertible legal proposition. It is true that the cases cited in the 16th and 25th Annuals strongly support the views taken on that subject by appellee’s counsel, bub legislation in respect to adoption has gone forward since those decisions were rendered, and recent adjudged cases will indicate that we view the rights of adopting parents as having been broadened by that legislation beyond what it was.
We note the second section of Act No. 64 of 1868, as declaring that when the person whose adoption is solicited is a minor, the consent of such person’s surviving father or mother, or both, if living, shall be required by the judge, and the said father or mother, -or both, as the ease" may be, may, in the act of adoption, surrender the entire parental authority to the person or persons adopting said *715minor. What the legal scope of such a surrender may be, we are not now called on to examine or say. We have no knowledge whatever of the facts and circumstances connected with the child. We do not know in whose hands it was prior to Mrs. Haley’s connection with it. We do not know who were the parties to the act of adoption, nor what the térms of the adoption were. We know nothing as to what would or would not be for its best interests, as there is no testimony before us. It is true that the natural mother, as a general rule, is declared in Art. 256 of the Civil Code to be entitled, under the circumstances therein stated, to be “ of right” the tutrix of her child, but, though she be entitled to that “ of right,” she is not necessarily to be appointed as “ of course.” Even the legitimate child is not necessarily to be placed under the tutorship of its father or its mother — the facts of a special case would make it sometimes improper that it should be so placed. What modification Art. 256 may have received in special cases, through special legislation, is an open question.
We have reached the conclusion that justice to all parties requires that the orders of court, appointing appellee natural tutrix of Charles Mandeville Taite, should be annulled and set aside, and that the rights of all parties in the premises be set at large.
For the reasons herein assigned it is hereby ordered, adjudged and •decreed that the orders of the District Court appealed from be and the same are hereby annulled, avoided and set aside; and it is now ordered that the case be remanded to the lower court for further proceedings according to law, with reservation to both parties of all legal rights in the premises.