THOMASSIN vs. RAPHAEL'S EXECUTOR, 11 La. 128

Carleton, J., delivered the opinion of the court. The plaintiff alleges that he is the grand-child and forced heir of Charlotte Raphael, and as such, entitled to one third of her estate ; that she made a will by which she instituted Michael Debergue, her universal legatee and testamentáry executor, and concludes with a prayer, that he may render an account of his administration, and pay over one third of the estate to the petitioner. Defendant answered by general denial, and judgment having been given for the plaintiff, defendant appealed.

The facts of the case are briefly these: The testatrix, Charlotte Raphael, had a natural son called Jean Baptiste Thomassin, jr., who intermarred in 1806, with Charlotte Montreuil. From this marriage were born two children, of whom Francois, the plaintiff, is the survivor and only heir. The filiation of Francois with the testatrix is not contested. At the period of the birth of Thomassin, jr., his putative father, Thomassin, sr., was a slave, and being after-wards emancipated, was married to Charlotte Raphael, in the year 1826, by the curate of St. Louis church,' in the city of New-Orleans.

The last clause of the registry of marriage is in the following words: marriag^oTüíe with the módica.’' when the parties are persons of color, does not cinidren6 bom before marriage, are'acifnowiedg-priest^ir)3 the celebration of the marriage.

Persons of legitimate their children bom riage, by a de-a notary anduvo has^not’ been made at the thfh'tebirtbs or baptisms. “Fueron testigos, Louis Simon y Honoré Destrehan, que dando .por este acto legitimado el lujo que los expressados coutrayantes tuvierou, llamade Juan Bautista Thomassin, el mismo que ha assistido a la celebración de esta matrimonio, y para que couste, lo firmé.” (Signed,) “ FR.

ANTONIO DE SEDELLA.” Plaintiff’s counsel contends, that Thomassin, jr., was legitimated by this marriage, and that the declaration signed ^7 the curate of the church, is a legal andsufficientacknow-ledgment of the child, and cites the 217th

article of the T . . , Louisiana Lode, IQ this opinion, we cannot agree with the counsel. That

article of the code, in force at the date of the marriage in question, but since repealed, declares, thatCf children born out marriage, except those who are born from an incestuous or adulterous connexion, may be legitimated by the subsequent . . ^ ° , J ,1 marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage, or by their contract of marriage itself.” And where the parties are persons of color, as in the case now under consideration, the law expressly declares that the on]v mode in which the acknowledgment can be made, shall be “ by declaration executed before a notary public, in presence of two witnesses, whenever it shall not have been, wade m ^Ie registering of the birth or baptism of such child.” Louisiana Code,

article 221. The plaintiff cannot, therefore, prevail, unless he shows such acknowledgment as is contemplated by this provision of the code ; none such is exhibited or alleged to exist, and whatever may be the disposition of the members of this court to favor the claims of consanguinity, which, by a law of out-natures, are respected in every country of the world, we are bound and mus,t obey the will of the legislature. The opinion here expressed, renders it unnecessary to notice any other point raised in the cause. We think the Court of Probates erred, and that the decree should have been for the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed, and that judgment be entered for the defendant, with costs in both courts.