Republic of the Philippines (a) Regular support and educational expenses;

SUPREME COURT
Manila (b) Allowance to use his surname;

FIRST DIVISION (c) Payment of maternal bills;

(d) Payment of baptismal expenses and attendance therein;

G.R. No. 112193 March 13, 1996 (e) Taking them to restaurants and department stores on occasions
of family rejoicing;
JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T.
ALANON, ROBERTO A. TORRES, CRISTINA A. TORRES, JUSTO JOSE TORRES (f) Attendance to school problems of plaintiffs;
and AGUSTIN TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and ANTONIA (g) Calling and allowing plaintiffs to his office every now and then;
ARUEGO, respondents.
(h) Introducing them as such children to family friends.

7. The plaintiffs are thus, in continuous possession of the status

HERMOSISIMA, JR., J.:p of (illegitimate) children of the deceased Jose M. Aruego who
showered them, with the continuous and clear manifestations of
paternal care and affection as above outlined.2
On March 7, 1983, a Complaint1 for Compulsory Recognition and Enforcement of
Successional Rights was filed before Branch 30 of the Regional Trial Court of Manila
by the minors, private respondent Antonia F. Aruego and her alleged sister Evelyn F. Petitioners denied all these allegations.
Aruego, represented by their mother and natural guardian, Luz M. Fabian. Named
defendants therein were Jose E. Aruego, Jr. and the five (5) minor children of the After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive
deceased Gloria A. Torres, represented by their father and natural guardian, Justo P. portion of which reads:
Torres, Jr., now the petitioners herein.
WHEREFORE, judgment is rendered —
In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had
an amorous relationship with Luz M. Fabian sometime in 1959 until his death on March 1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego
30, 1982. Out of this relationship were born Antonia F. Aruego and Evelyn F. Aruego and Luz Fabian;
on October 5, 1962 and September 3, 1963, respectively. The complaint prayed for an
Order praying that herein private respondent and Evelyn be declared the illegitimate
children of the deceased Jose M. Aruego, Sr.; that herein petitioners be compelled to 2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with
recognize and acknowledge them as the compulsory heirs of the deceased Jose M. Luz Fabian;
Aruego; that their share and participation in the estate of their deceased father be
determined and ordered delivered to them. 3. Declaring that the estate of deceased Jose Aruego are the
following:
The main basis of the action for compulsory recognition is their alleged "open and
continuous possession of the status of illegitimate children" as stated in paragraphs 6 xxx xxx xxx
and 7 of the Complaint, to wit:
4. Antonia Aruego is entitled to a share equal to 1/2 portion of share
6. The plaintiffs' father, Jose M. Aruego, acknowledged and of the legitimate children of Jose Aruego;
recognized the herein plaintiffs as his children verbally among
plaintiffs' and their mother's family friends, as well as by myriad
5. Defendants are hereby ordered to recognize Antonia Aruego as
different paternal ways, including but not limited to the following:
the illegitimate daughter of Jose Aruego with Luz Fabian;
 6. Defendants are hereby ordered to deliver to Antonia Aruego (her)
share in the estate of Jose Aruego, Sr.;
7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the
sum of P10,000.00 as atty's fee;
8. Cost against the defendants.3
Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss
of jurisdiction on the part of the trial court over the complaint by virtue of the passage
of Executive Order No. 209 (as amended by Executive Order No. 227), otherwise
known as the Family Code of the Philippines which took effect on August 3, 1988. This
motion was denied by the lower court in the Order, dated January 14, 1993.
Petitioners interposed an appeal but the lower court refused to give it due course on
the ground that it was filed out of time.
A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction
was filed by herein petitioners before respondent Court of Appeals, the petition was
dismissed for lack of merit in a decision promulgated on August 31, 1993. A Motion for
Reconsideration when filed was denied by the respondent court in a minute resolution,
dated October 13, 1993.
Hence, this Petition for Review on Certiorari under Rule 45 alleging the following
grounds:
A which case the latter may file the action before the expiration of four
RESPONDENT COURT HAD DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS
DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION
ALREADY ISSUED BY THIS HONORABLE COURT.
B is provided that an action for compulsory recognition of illegitimate filiation, if
RESPONDENT COURT ERRED IN HOLDING THAT THE
PETITION FILED BY PETITIONERS BEFORE IT DOES NOT
INVOLVE A QUESTION OF JURISDICTION.
C
RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT
THERE IS NO PERCEPTIBLE DIFFERENCE BETWEEN THE CIVIL
CODE PROVISION AND THOSE OF THE FAMILY CODE ANENT
THE TIME AN ACTION FOR COMPULSORY RECOGNITION MAY
BE MADE AND THAT THERE IS NO DIFFERENCE UNDER THE
CIVIL CODE FROM THAT OF THE FAMILY CODE CONCERNING
THE REQUIREMENT THAT AN ACTION FOR COMPULSORY
RECOGNITION ON THE GROUND OF CONTINUOUS
POSSESSION OF THE STATUS OF AN ILLEGITIMATE CHILD
SHOULD BE FILED DURING THE LIFETIME OF THE PUTATIVE
PARENT, IN UTTER DISREGARD OF THE RULING OF THIS
HONORABLE COURT IN THE UYGUANGCO CASE THAT THE
CIVIL CODE PROVISION HAD BEEN SUPERSEDED OR AT
LEAST MODIFIED BY THE CORRESPONDING ARTICLES IN THE
FAMILY CODE.
D
RESPONDENT COURT ERRED IN DISMISSING PETITIONERS'
PETITION FOR PROHIBITION AND IN HOLDING THAT
PETITIONERS REMEDY IS THAT OF AN APPEAL WHICH
ALLEGEDLY HAD ALREADY BEEN LOST.4
Private respondent's action for compulsory recognition as an illegitimate child was
brought under Book I, Title VIII of the Civil Code on PERSONS, specifically Article 285
thereof, which state the manner by which illegitimate children may prove their filiation,
to wit:
Art. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in
the following cases:
(1) If the father or mother died during the minority of the child, in
years from the attainment of his majority; . . . .
Petitioners, on the other hand, submit that with the advent of the New Family
Code on August 3, 1988, the trial court lost jurisdiction over the complaint of
private respondent on the ground of prescription, considering that under
Article 175, paragraph 2, in relation to Article 172 of the New Family Code, it
based on the "open and continuous possession of the status of an illegitimate
child," must be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.
The law cited reads:
Art. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
 (2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall
be proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article
173 [during the lifetime of the child], except when the action is based
on the second paragraph of Article 172, in which case the action may
be brought during the lifetime of the alleged parent.
In the case at bench, petitioners point out that, since the complaint of private
respondent and her alleged sister was filed on March 7, 1983, or almost one
(1) year after the death of their presumed father on March 30, 1982, the action
has clearly prescribed under the new rule as provided in the Family Code.
Petitioners, further, maintain that even if the action was filed prior to the
effectivity of the Family Code, this new law must be applied to the instant case
pursuant to Article 256 of the Family Code which provides:
This Code shall, have retroactive effect insofar as it does not
prejudice or impair vested of acquired rights in accordance with the
Civil Code or other laws.
The basic question that must be resolved in this case, therefore, appears to be:
Should the provisions of the Family Code be applied in the instant case? As a corollary
Will the application of the Family Code in this case prejudice or impair any vested right
of the private respondent such that it should not be given retroactive effect in this
particular case?
The phrase "vested or acquired rights" under Article 256, is not defined by the Family
Code. "The Committee did not define what is meant by a 'vested or acquired right,' thus
leaving it to the courts to determine what it means as each particular issue is submitted
to them. It is difficult to provide the answer for each and every question that may arise
in the future."5
In Tayag vs. Court of Appeals,6 a case which involves a similar complaint denominated
as "Claim for Inheritance" but treated by this court as one to compel recognition as an
illegitimate child brought prior to the effectivity of the Family Code by the mother of the
minor child, and based also on the "open and continuous possession of the status of
an illegitimate child," we had occasion to rule that:
Under the circumstances obtaining in the case at bar, we hold that
the right of action of the minor child has been vested by the filing of
the complaint in court under the regime of the Civil Code and prior to
the effectivity of the Family Code. We herein adopt our ruling in the
recent case of Republic of the Philippines vs. Court of
Appeals, et. al. 7 where we held that the fact of filing of the petition
already vested in the petitioner her right to file it and to have the same
proceed to final adjudication in accordance with the law in force at
the time, and such right can no longer be prejudiced or impaired by
the enactment of a new law.
xxx xxx xxx
Accordingly, Article 175 of the Family Code finds no proper
application to the instant case since it will ineluctably affect adversely
a right of private respondent and, consequentially, of the minor child
she represents, both of which have been vested with the filing of the
complaint in court. The trial court is, therefore, correct in applying the
provisions of Article 285 of the Civil Code and in holding that private
respondent's cause of action has not yet prescribed.
Tayag applies four-square with the case at bench. The action brought by private
respondent Antonia Aruego for compulsory recognition and enforcement of
successional rights which was filed prior to the advent of the Family Code, must be
governed by Article 285 of the Civil Code and not by Article 175, paragraph 2 of the
Family Code. The present law cannot be given retroactive effect insofar as the instant
case is concerned, as its application will prejudice the vested right of private respondent
to have her case decided under Article 285 of the Civil Code. The right was vested to
her by the fact that she filed her action under the regime of the Civil Code. Prescinding
from this, the conclusion then ought to be that the action was not yet barred,
notwithstanding the fact that it was brought when the putative father was already
deceased, since private respondent was then still a minor when it was filed, an
exception to the general rule provided under Article 285 of the Civil Code. Hence, the
trial court, which acquired jurisdiction over the case by the filing of the complaint, never
lost jurisdiction over the same despite the passage of E.O. No. 209, also known as the
Family Code of the Philippines.
Our ruling herein reinforces the principle that the jurisdiction of a court, whether in
criminal or civil cases, once attached cannot be ousted by subsequent happenings or
events, although of a character which would have prevented jurisdiction from attaching
in the first instance, and it retains jurisdiction until it finally disposes of the case. 8
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated
August 31, 1993 and its Resolution dated October 13, 1993 are hereby AFFIRMED.

FIRST DIVISION
G.R. No. 124853. February 24, 1998
FRANCISCO L. JISON, Petitioner, v. COURT OF APPEALS and MONINA
JISON, Respondent.
DECISION
DAVIDE, JR., J.:
This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995
decision of the Court of Appeals (CA) in CA-G.R. CV No. 328601 which reversed the
decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No.
16373.2 The latter dismissed the complaint of private respondent Monina Jison
(hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco
Jison (hereafter FRANCISCO).
In issue is whether or not public respondent Court of Appeals committed reversible
error, which, in this instance, necessitates an inquiry into the facts. While as a general
rule, factual issues are not within the province of this Court, nevertheless, in light of
the conflicting findings of facts of the trial court and the Court of Appeals, this case
falls under an exception to this rule.3cräläwvirtualibräry
In her complaint4 filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end
of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F.
Amolar (who was then employed as the nanny of FRANCISCO's daughter, Lourdes).
As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since
childhood, had enjoyed the continuous, implied recognition as an illegitimate child of
FRANCISCO by his acts and that of his family. MONINA further alleged that
FRANCISCO gave her support and spent for her education, such that she obtained a
Master's degree, became a certified public accountant (CPA) and eventually, a
Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her,
MONINA prayed for a judicial declaration of her illegitimate status and that
FRANCISCO support and treat her as such.
In his answer,5 FRANCISCO alleged that he could not have had sexual relations with
Esperanza Amolar during the period specified in the complaint as she had ceased to
be in his employ as early as 1944, and did not know of her whereabouts since then;
further, he never recognized MONINA, expressly or impliedly, as his illegitimate child.
As affirmative and special defenses, FRANCISCO contended that MONINA had no
right or cause of action against him and that her action was barred by estoppel,
laches and/or prescription. He thus prayed for dismissal of the complaint and an
award of damages due to the malicious filing of the complaint.
After MONINA filed her reply,6 pre-trial was conducted where the parties stipulated on
the following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the
end of 1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the
latters own acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the present action by
estoppel, laches and/or prescription?
4. Damages.7cräläwvirtualibräry
At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely:
herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma,
Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz
and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had
worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's
Iloilo residence. Towards the end of the Japanese occupation, FRANCISCOs wife
suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium;
thereafter, FRANCISCOs wife managed a nightclub on the ground floor of Nelly
Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby
allowing FRANCISCO free access to MONINAs mother, Esperanza Amolar, who was
nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as the yaya (nanny)
of Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly
Garden two (2) weeks before Adela started working for the Jisons, Pansay returned
sometime in September 1946, or about one month after she gave birth to MONINA, to
ask FRANCISCO for support. As a result, Pansay and Lilia Jison, FRANCISCO's
wife, quarreled in the living room, and in the course thereof, Pansay claimed that
FRANCISCO was the father of her baby. To which, Lilia replied: I did not tell you to
make that baby so it is your fault. During the quarrel which lasted from 10:30 till 11:00
a.m., FRANCISCO was supposedly inside the house listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he
worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol
Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the
bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCOs
daughter, would arrive at Bacolod City with a letter of introduction from Lagarto.
Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11)
of MONINA,8 and as he paid for the telephone bills, he likewise identified six (6)
telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in
Bacolod City, she introduced herself to him as FRANCISCOs daughter. She stayed at
FRANCISCOs house, but when the latter and his wife would come over, Arsenio
would conceal the presence of MONINA because Mrs. Jison did not like to see her
face. Once, Arsenio hid MONINA in the house of FRANCISCOs sister, Mrs. Luisa
Jison Alano, in Silay City; another time, at the residence of FRANCISCOs cousin,
Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last time he saw
MONINA was when she left for Manila, after having finished her schooling at La Salle
College in Bacolod City.
On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his
wife were around; that although FRANCISCO and MONINA saw each other at the
Bacolod house only once, they called each other through long distance; and that
MONINA addressed FRANCISCO as Daddy during their lone meeting at the Bacolod
house and were affectionate to each other. Arsenio likewise declared that MONINA
stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a
week the second time. On both occasions, however, FRANCISCO and his wife were
abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat
MONINA like his (FRANCISCOs) other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo
City, initially touched on how he and his wife were related to FRANCISCO,
FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the
family trees of the Jison and Lopez families, which showed that former Vice-President
Fernando Lopez was the first cousin of FRANCISCOs wife, then told the court that
the family of Vice-President Lopez treated MONINA very well because she is
considered a relative xxx by reputation, by actual perception. Zafiro likewise identified
Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday celebration of
Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and
other members of the Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for
some of MONINAs school needs and even asked MONINA to work in a hospital
owned by Mrs. Cuaycong; and that another first cousin of FRANCISCOs wife, a
certain Remedios Lopez Franco, likewise helped MONINA with her studies and
problems, and even attended MONINAs graduation in 1978 when she obtained a
masteral degree in Business Administration, as evidenced by another photograph
(Exh. X-12). Moreover, upon Remedios recommendation, MONINA was employed as
a secretary at Merchant Financing Company, which was managed by a certain
Danthea Lopez, the wife of another first cousin of FRANCISCOs wife, and among
whose directors were Zafiro himself, his wife and Dantheas husband. In closing,
Zafiro identified MONINAs Social Security Record (Exh. W), which was signed by
Danthea as employer and where MONINA designated Remedios as the beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first
cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the
latter part of 1965 when Remedios Franco recommended MONINA for employment at
Merchant Financing Co., which Danthea managed at that time. Remedios introduced
MONINA to Danthea as being reputedly the daughter of Mr. Frank Jison; and on
several occasions thereafter, Remedios made Danthea and the latters husband
understand that MONINA was reputedly the daughter of [FRANCISCO]. While
MONINA worked at Merchant Financing, Danthea knew that MONINA lived with
Remedios; however, in the latter part of 1966, as Remedios left for Manila and
MONINA was still studying at San Agustin University, Danthea and her husband
invited MONINA to live with them. During MONINAs 6-month stay with them, she was
not charged for board and lodging and was treated as a relative, not a mere
employee, all owing to what Remedios had said regarding MONINAs filiation. As
Danthea understood, MONINA resigned from Merchant Financing as she was called
by Mrs. Cuaycong, a first cousin of Dantheas husband who lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO
from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer,
hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971,
Romeo saw and heard MONINA ask her Daddy (meaning FRANCISCO) for the
money he promised to give her, but FRANCISCO answered that he did not have the
money to give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in
the middle of September that year, FRANCISCO told Romeo to pick up Mr. Cruz at
the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty.
Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When they
came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said
that a check would be released to MONINA if she signed the papers, so MONINA
acceded, although Atty. Tirol intended not to give MONINA a copy of the document
she signed. Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA
grabbed a copy of the document she signed and ran outside. Romeo then brought Mr.
Cruz to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to
help MONINA be recognized as FRANCISCOS daughter.
Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City; then in
1965, Rudy worked at FRANCISCOs office at Nelly Garden recording hacienda
expenses, typing vouchers and office papers, and, at times, acting as paymaster for
the haciendas. From the nature of his work, Rudy knew the persons receiving money
from FRANCISCOs office, and clearly remembered that in 1965, as part of his job,
Rudy gave MONINA her allowance from FRANCISCO four (4) times, upon
instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise
recalled that he first met MONINA in 1965, and that she would go to Nelly Garden
whenever FRANCISCOs wife was not around. On some of these occasions, MONINA
would speak with and address FRANCISCO as Daddy, without objection from
FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money thrice.
Rudy further declared that in April 1965, FRANCISCOs office paid P250.00 to
Funeraria Bernal for the funeral expenses of MONINAs mother. Finally, as to Rudy's
motives for testifying, he told the court that he simply wanted to help bring out the
truth and nothing but the truth, and that MONINAs filiation was common knowledge
among the people in the office at Nelly Garden.
On re-direct, Rudy declared that the moneys given by FRANCISCOs office to
MONINA were not reflected in the books of the office, but were kept in a separate
book, as Mr. Lagarto explained that FRANCISCOs wife and children should not know
[of] this. Rudy further revealed that as to the garden meetings between FRANCISCO
and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving
and before leaving, and FRANCISCOs reaction upon seeing her was to smile and say
in the Visayan dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA
was free to go inside the house as the household staff knew of her filiation, and that,
sometimes, MONINA would join them for lunch.
Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly
Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then
when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office
manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim
her P15.00 monthly allowance given upon FRANCISCOs standing order. Alfredo
further declared that MONINAs filiation was pretty well-known in the office; that he
had seen MONINA and FRANCISCO go from the main building to the office, with
FRANCISCOs arm on MONINAs shoulder; and that the office paid for the burial
expenses of Pansay, but this was not recorded in the books in order to hide it from
FRANCISCOs wife. Alfredo also disclosed that the disbursements for MONINAs
allowance started in 1961 and were recorded in a separate cash book. In 1967, the
allowances ceased when MONINA stopped schooling and was employed in Bacolod
City with Miller, Cruz & Co., which served as FRANCISCOs accountant-auditor.
Once, when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr.
Atienza, and arrange for the preparation of FRANCISCOs income tax return, Alfredo
chanced upon MONINA. When Alfredo asked her how she came to work there, she
answered that her Daddy, FRANCISCO, recommended her, a fact confirmed by Mr.
Atienza. Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was
the most trusted man of FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and
spoke with FRANCISCO for about an hour, during which time, Dominador was
vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the
vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador
overheard their conversation. As FRANCISCO asked Pansay why they
came, Pansay answered that they came to ask for the sustenance of his child
MONINA. FRANCISCO then touched MONINA's head and asked: How are you Hija?,
to which MONINA answered: Good morning, Daddy. After FRANCISCO
told Pansay and MONINA to wait, he pulled something from his wallet and said
to Pansay: I am giving this for the child.
In May 1954, Dominador saw MONINA at Mr. Lagartos office where Dominador was
to get the days expenses, while MONINA was claiming her allowance from Mr.
Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the
office that MONINA was there to get her allowance from her Daddy. In December
1960, Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of
FRANCISCOs wife), where she asked for a Christmas gift and she was calling Don
Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not around.
Then sometime in 1961, when Dominador went to Mr. Lagartos office to get the
marketing expenses, Dominador saw MONINA once more claiming her allowance.
Dominador further testified that in February 1966, after he had stopped working for
FRANCISCO, Dominador was at Mrs. Francos residence as she recommended him
for employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who
was then about 15 years old, together with Mrs. Francos daughter and son. Mrs.
Franco pointed at MONINA and asked Dominador if he knew who MONINA was.
Dominador answered that MONINA was FRANCISCOs daughter with Pansay, and
then Mrs. Franco remarked that MONINA was staying with her (Mrs. Franco) and that
she was sending MONINA to school at the University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy
from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope
to work at Elena Apartments in Manila. By November 1945, Pansay was also working
at Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her.
Lope then confronted FRANCISCO, who told Lope dont get hurt and dont cause any
trouble, because I am willing to support your Inday Pansay and my child. Three (3)
days after this confrontation, Lope asked for and received permission from
FRANCISCO to resign because he (Lope) was hurt.
On 21 October 1986, MONINA herself took the witness stand. At that time, she was
40 years old and a Central Bank Examiner. She affirmed that as evidenced by
certifications from the Office of the Local Civil Registrar (Exhs. E and F) and
baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay
Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965)
and FRANCISCO.9 MONINA first studied at Sagrado where she stayed as a boarder.
While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid
for her tuition fees and other school expenses. She either received the money from
FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or
Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different
schools,10 but FRANCISCO continuously answered for her schooling.
For her college education, MONINA enrolled at the University of Iloilo, but she later
dropped due to an accident which required a week's hospitalization. Although
FRANCISCO paid for part of the hospitalization expenses, her mother shouldered
most of them. In 1963, she enrolled at the University of San Agustin, where she
stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for
books, school supplies, uniforms and the like were shouldered by FRANCISCO. At
the start of each semester, MONINA would show FRANCISCO that she was enrolled,
then he would ask her to canvass prices, then give her the money she needed. After
finishing two (2) semesters at University of San Agustin, as evidenced by her
transcript of records (Exh. Z showing that FRANCISCO was listed as Parent/Guardian
[Exh. Z-1]), she transferred to De Paul College, just in front of Mrs. Francos house,
and studied there for a year. Thereafter, MONINA enrolled at Western Institute of
Technology (WIT), where she obtained a bachelors degree in Commerce in April
1967. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel
Kahirup, owned by said couple. She passed the CPA board exams in 1974, and took
up an M.B.A. at De La Salle University as evidenced by her transcript (Exh. AA),
wherein FRANCISCO was likewise listed as Guardian (Exhs. AA-1 and AA-2).
MONINA enumerated the different members of the household staff at Nelly Garden,
to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid
Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina;
and others. MONINA likewise enumerated the members of the office staff (Messrs.
Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and
identified them from a photograph marked as Exhibit X-2. She then corroborated the
prior testimony regarding her employment at Merchant Financing Co., and her having
lived at Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while
working at the hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets, Ermita.
She told FRANCISCO that she was going for a vacation in Baguio City with Mrs.
Francos mother, with whom she stayed up to June 1968. Upon her return from
Baguio City, MONINA told FRANCISCO that she wanted to work, so the latter
arranged for her employment at Miller & Cruz in Bacolod City. MONINA went to
Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told
her she would start working first week of September, sans examination. She resigned
from Miller & Cruz in 1971 and lived with Mrs. Cuaycong at her Forbes Park
residence in Makati. MONINA went to see FRANCISCO, told him that she resigned
and asked him for money to go to Spain, but FRANCISCO refused as she could not
speak Spanish and would not be able find a job. The two quarreled and FRANCISCO
ordered a helper to send MONINA out of the house. In the process, MONINA broke
many glasses at the pantry and cut her hand, after which, FRANCISCO hugged her,
gave her medicine, calmed her down, asked her to return to Bacolod City and
promised that he would give her the money.
MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane
ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as
instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll cards
(Exhs. G to L), with annotations at the back reading: charged and paid under the
name of Frank L. Jison and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT
issued a certification as to the veracity of the contents of the toll cards (Exh. BB).
Likewise introduced in evidence was a letter of introduction prepared by Mr. Cruz
addressed to Atty. Tirol, on MONINA's behalf (Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo
and sign a certain affidavit, before Mr. Cruz would turn over the money promised by
FRANCISCO. She went to Atty. Tirols office in Iloilo, but after going over the draft of
the affidavit, refused to sign it as it stated that she was not FRANCISCOs daughter.
She explained that all she had agreed with FRANCISCO was that he would pay for
her fare to go abroad, and that since she was a little girl, she knew about her
illegitimacy. She started crying, begged Atty. Tirol to change the affidavit, to which
Atty. Tirol responded that he was also a father and did not want this to happen to his
children as they could not be blamed for being brought into the world. She then wrote
a letter (Exh. O) to FRANCISCO and sent it to the latters Forbes Park residence
(Bauhinia Place) by JRS courier service (Exhs. O-5 to O-7). MONINA subsequently
met FRANCISCO in Bacolod City where they discussed the affidavit which she
refused to sign. FRANCISCO told her that the affidavit was for his wife, that in case
she heard about MONINA going abroad, the affidavit would keep her peace.
MONINA then narrated that the first time she went to Atty. Tirols office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit
(Exh. P)11 would boomerang against FRANCISCO as it is contrary to law. MONINA
returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but
Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she
signed the affidavit as she was jobless and needed the money to support herself and
finish her studies. In exchange for signing the document, MONINA received a Bank of
Asia check for P15,000.00 (Exh. Q), which was less than the P25,000.00 which
FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give her a
copy of the affidavit after notarizing it, MONINA merely grabbed a copy and
immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured letters of
introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs elder
sister Luisa); and an uncle, Emilio Jison (FRANCISCOs elder brother), addressed to
another cousin, Beth Jison (Emilios daughter), for Beth to assist MONINA. Exhibit S
contained a statement (Exh. S-1) expressly recognizing that MONINA was
FRANCISCOs daughter. Ultimately though, MONINA decided not to go abroad,
opting instead to spend the proceeds of the P15,000.00 check for her CPA review,
board exam and graduate studies. After finishing her graduate studies, she again
planned to travel abroad, for which reason, she obtained a letter of introduction from
former Vice President Fernando Lopez addressed to then United States Consul
Vernon McAnnich (Exh. V).
As to other acts tending to show her filiation, MONINA related that on one occasion,
as FRANCISCOs wife was going to arrive at the latters Bacolod City residence,
FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus,
MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCOs
wife. MONINA also claimed that she knew Vice President Fernando Lopez and his
wife, Mariquit, even before starting to go to school. Thus, MONINA asked for a
recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment
with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit
U, Mrs. Lopez expressly recognized MONINA as FRANCISCOs daughter. As
additional proof of her close relationship with the family of Vice President Lopez,
MONINA identified photographs taken at a birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife,
namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met only
Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with Junior
and the two (2) occasions when she met with Lourdes. The last time MONINA saw
FRANCISCO was in March 1979, when she sought his blessings to get married.
In his defense, FRANCISCO offered his deposition taken before then Judge Romeo
Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses,
FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes
Ledesma, Jose Cruz and Dolores Argenal.
FRANCISCO declared that Pansays employment ceased as of October, 1944, and
that while employed by him, Pansay would sleep with the other female helpers on the
first floor of his residence, while he, his wife and daughter slept in a room on the
second floor. At that time, his household staff was composed of three (3) female
workers and two (2) male workers. After Pansay left in October 1944, she never
communicated with him again, neither did he know of her whereabouts. FRANCISCO
staunchly denied having had sexual relations with Pansay and disavowed any
knowledge about MONINAs birth. In the same vein, he denied having paid for
MONINAs tuition fees, in person or otherwise, and asserted that he never knew that
Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that
Lagarto would pay for these fees despite absence of instructions or approval from
FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea
Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was
his daughter.
FRANCISCO also disclosed that upon his return from the United States in 1971, he
fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position
during the formers absence. FRANCISCO likewise fired Rudy Tingson and Romeo
Bilbao, but did not give the reasons therefor.
Finally, FRANCISCO denied knowledge of MONINAs long distance calls from his
Bacolod residence; nevertheless, when he subsequently discovered this, he fired
certain people in his office for their failure to report this anomaly. As regards the
caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived
at Mrs. Cuaycongs residence, the caretaker thought that he could allow people who
lived at the Cuaycong residence to use the facilities at his (FRANCISCOs) house.
Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to 1974,
then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he
did not know MONINA; that he learned of her only in June 1988, when he was
informed by FRANCISCO that MONINA had sued him; and that he never saw
MONINA at Nellys Garden, neither did he know of any instructions for anyone at
Nellys Garden to give money to MONINA.
Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986,
testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto
or Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that
he prepared vouchers for only one of FRANCISCOs haciendas, and not vouchers
pertaining to the latters personal expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden from
1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-
charge (OIC). He confirmed Alfredo Baylosis dismissal due to these unspecified
irregularities, then denied that FRANCISCO ever ordered that MONINA be given her
allowance. Likewise, Iigo never heard FRANCISCO mention that MONINA was his
(FRANCISCOs) daughter.
Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not know)
MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes
first son, Mark. Over lunch one day, Lourdes aunt casually introduced Lourdes and
MONINA to each other, but they were referred to only by their first names. Then
sometime in 1983 or 1984, MONINA allegedly went to Lourdes house in Sta. Clara
Subdivision requesting for a letter of introduction or referral as MONINA was then job-
hunting. However, Lourdes did not comply with the request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller &
Cruz from 1968 up to 1971, however, he did not personally interview her before she
was accepted for employment. Moreover, MONINA underwent the usual screening
procedure before being hired. Jose recalled that one of the accountants, a certain Mr.
Atienza, reported that MONINA claimed to be FRANCISCOs daughter. Jose then told
Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from
spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him
that she planned to leave for the United States and needed P20,000.00 for that
purpose, and in exchange, she would sign a document disclaiming filiation with
FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with
Jose, and at that meeting, MONINA confirmed Mr. Atienzas report. Jose then
informed Atty. Tirol, FRANCISCOs personal lawyer, about the matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office in Iloilo.
Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol. Jose
relayed Atty. Tirols message to MONINA through Mr. Atienza, then later, Atty. Tirol
told Jose to go to Iloilo with a check for P15,000.00. Jose complied, and at Atty. Tirols
office, Jose saw MONINA, Atty. Tirol and his secretary reading some documents.
MONINA then expressed her willingness to sign the document, sans revisions. Jose
alleged that he drew the P15,000.00 from his personal funds, subject to
reimbursement from and due to an understanding with FRANCISCO.
Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her
parents room; that she had not seen FRANCISCO give special treatment to Pansay;
that there was no unusual relationship between FRANCISCO and Pansay, and if
there was any, Dolores would have easily detected it since she slept in the same
room as Pansay. Dolores further declared that whenever FRANCISCOs wife was out
of town, Pansay would bring Lourdes downstairs at nighttime, and that Pansay would
not sleep in the room where FRANCISCO slept. Finally, Dolores declared
that Pansay stopped working for FRANCISCO and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their respective
memoranda.
It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINAs witnesses and about
half of MONINAs testimony on direct examination. Judge Norberto E. Devera, Jr.
heard the rest of MONINA's testimony and those of FRANCISCOs witnesses.
In its decision of 12 November 199012 the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph
thereof, it observed:
This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina
Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985
at the time when plaintiff, reckoned from her death of birth, was already thirty-nine
years old. Noteworthy also is the fact that it was instituted twenty years after the death
of plaintiffs mother, Esperanza Amolar. For the years between plaintiffs birth and
Esperanzas death, no action of any kind was instituted against defendant either by
plaintiff, her mother Esperanza or the latters parents. Neither had plaintiff brought
such an action against defendant immediately upon her mothers death on April 20,
1965, considering that she was then already nineteen years old or, within a
reasonable time thereafter. Twenty years more had to supervene before this
complaint was eventually instituted.
The trial court then proceeded to discuss the four issues stipulated at pre-trial,
without, however, summarizing the testimonies of the witnesses nor referring to the
testimonies of the witnesses other than those mentioned in the discussion of the
issues.
The trial court resolved the first issue in the negative, holding that it was improbable
for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her
at the Elena Apartments in November 1945, since Pansay was then only in her first
month of pregnancy; that there was no positive assertion that copulation did indeed
take place between Francisco and Esperanza; and that MONINAs attempt to show
opportunity on the part of FRANCISCO failed to consider that there was also the
opportunity for copulation between Esperanza and one of the several domestic
helpers admittedly also residing at Nellys Garden at that time. The RTC also ruled
that the probative value of the birth and baptismal certificates of MONINA paled in
light of jurisprudence, especially when the misspellings therein were considered.
The trial court likewise resolved the second issue in the negative, finding that
MONINAs evidence thereon may either be one of three categories, namely: hearsay
evidence, incredulous evidence, or self-serving evidence." To the first category
belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose
knowledge of MONINAs filiation was based, as to the former, on utterances of
defendants wife Lilia and Esperanza allegedly during the heat of their quarrel, while
as to the latter, Alfredo's conclusion was based from the rumors going [around] that
plaintiff is defendants daughter, from his personal observation of plaintiffs facial
appearance which he compared with that of defendants and from the way the two
(plaintiff and defendant) acted and treated each other on one occasion that he had
then opportunity to closely observe them together. To the second category belonged
that of Dominador Savariz, as:
At each precise time that Esperanza allegedly visited Nellys Garden and allegedly on
those occasions when defendants wife, Lilia was in Manila, this witness was there
and allegedly heard pieces of conversation between defendant and Esperanza
related to the paternity of the latters child. xxx
The RTC then placed MONINAs testimony regarding the acts of recognition accorded
her by FRANCISCOs relatives under the third category, since the latter were never
presented as witnesses, for which reason the trial court excluded the letters from
FRANCISCOs relatives (Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by prescription
for it was of the perception that the benefits of Article 268 accorded to legitimate
children may be availed of or extended to illegitimate children in the same manner as
the Family Code has so provided; or by laches, which is [a] creation of equity applied
only to bring equitable results, and addressed to the sound discretion of the court
[and] the circumstances [here] would show that whether plaintiff filed this case
immediately upon the death of her mother Esperanza in 1965 or twenty years
thereafter in 1985, xxx there seems to be no inequitable result to defendant as related
to the situation of plaintiff.
The RTC ruled, however, that MONINA was barred by estoppel by deed because of
the affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-five
years, a professional and under the able guidance of counsel.
Finally, the RTC denied FRANCISCOs claim for damages, finding that MONINA did
not file the complaint with malice, she having been propelled by an honest belief,
founded on probable cause.
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and
sought reversal of the trial courts decision on the grounds that:
I
THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS
CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANTS
DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF
APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE
CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS
PART OF HER EVIDENCE.
IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE
ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE AND APPELLANTS
MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT.
V
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY
IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS
HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS AFFIDAVIT
(EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD
OF REINFORCING SAID CLAIM.13
Expectedly, FRANCISCO refuted these alleged errors in his Appellees
Brief.14cräläwvirtualibräry
In its decision of 27 April 1995,15 the Court of Appeals initially declared that as no
vested or acquired rights were affected, the instant case was governed by Article 175,
in relation to Articles 172 and 173, of the Family Code. 16 While the Court of Appeals
rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E
and F) as FRANCISCO did not sign them, said court focused its discussion on the
other means by which illegitimate filiation could be proved, i.e., the open and
continuous possession of the status of an illegitimate child or, by any other means
allowed by the Rules of Court and special laws, such as the baptismal certificate of
the child, a judicial admission, a family bible wherein the name of the child is entered,
common reputation respecting pedigree, admission by silence, testimonies of
witnesses xxx.17 To the Court of Appeals, the bottom line issue was whether or not
MONINA established her filiation as FRANCISCOs illegitimate daughter by
preponderance of evidence, as to which issue said court found:
[N]ot just preponderant but overwhelming evidence on record to prove that [MONINA]
is the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed
such status by direct acts of [FRANCISCO] and/or his relatives.
In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz were already sufficient to establish
MONINAs filiation:
As adverted to earlier, the trial court discredited Lope Amolars testimony by saying
that Lope could not have detected Esperanzas pregnant state in November, 1945
since at that point in time [sic] she was still in the initial stage of pregnancy.
Apparently, the trial court paid more emphasis on the date mentioned by Lope Amolar
than on the tenor and import of his testimony. As xxx Lope xxx was asked about an
incident that transpired more than 41 years back, [u]nder the circumstances, it is
unreasonable to expect that Lope could still be dead right on the specific month in
1945 that [he] met and confronted his sister. At any rate, what is important is not the
month that they met but the essence of his testimony that his sister pointed to their
employer [FRANCISCO] as the one responsible for her pregnancy, and that upon
being confronted, [FRANCISCO] assured him of support for Esperanza and their
child. It would appear then that in an attempt to find fault with Lopes testimony, the
trial court has fallen oblivious to the fact that even [FRANCISCO], in his deposition,
did not deny that he was confronted by Lope about what he had done to Esperanza,
during which he unequivocally acknowledged paternity by assuring Lope of support
for both Esperanza and their child.
The Court of Appelas further noted that Casabuena and Savariz testified on something
that they personally observed or witnessed, which matters FRANCISCO did not deny
or refute. Finally, said court aptly held:
Taking into account all the foregoing uncontroverted testimonies xxx let alone such
circumstantial evidence as [MONINAs] Birth Certificates xxx and Baptismal
Certificates which invariably bear the name of [FRANCISCO] as her father, We
cannot go along with the trial courts theory that [MONINAs] illegitimate filiation has not
been satisfactorily established.
xxx
Significantly, [MONINAs] testimony finds ample corroboration from [FRANCISCOs]
former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. xxx
xxx
Carefully evaluating appellants evidence on her enjoyment of the status of an
illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion thereof,
We find more weight in the former. The positive testimonies of [MONINA] and [her]
witnesses xxx all bearing on [FRANCISCOs] acts and/or conduct indubitably showing
that he had continuously acknowledged [MONINA] as his illegitimate daughter have
not been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition,
only casually dismissed [MONINAs] exhaustive and detailed testimony as untrue, and
with respect to those given by [MONINAs] witnesses, he merely explained that he had
fired [them] from their employment. Needless to state, [FRANCISCOs] vague denial is
grossly inadequate to overcome the probative weight of [MONINAs] testimonial
evidence.
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree
to sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was
only for the consumption of his spouse xxx. Further, the testimony of Jose Cruz
concerning the events that led to the execution of the affidavit xxx could not have
been true, for as pointed out by [MONINA], she signed the affidavit xxx almost five
months after she had resigned from the Miller, Cruz & Co. xxx
At any rate, if [MONINA] were not his illegitimate daughter, it would have been
uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured
[MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said
affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to
conceal or suppress his paternity of [MONINA]. xxx
In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate daughter has
been conclusively established by the uncontroverted testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz to the effect that appellee himself had illegitimate daughter of appellee Francisco Jison, and entitled to all rights and
admitted his paternity of the appellee, and also by the testimonies of appellant, privileges granted by law.
Arsenio Duatin, Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly
demonstrating that by his own conduct or overt acts like sending appellant to school, Costs against appellee.
paying for her tuition fees, school uniforms, books, board and lodging at the Colegio
del Sagrado Corazon de Jesus, defraying appellants hospitalization expenses,
providing her with [a] monthly allowance, paying for the funeral expenses of SO ORDERED.
appellants mother, acknowledging appellants paternal greetings and calling appellant
his Hija or child, instructing his office personnel to give appellants monthly allowance, His motion for reconsideration having been denied by the Court of Appeals in its
recommending appellant for employment at the Miller, Cruz & Co., allowing appellant resolution of 29 March 1996,18 FRANCISCO filed the instant petition. He urges us to
to use his house in Bacolod and paying for her long distance telephone calls, having reverse the judgment of the Court of Appeals, alleging that said court committed
appellant spend her vacation in his apartment in Manila and also at his Forbes errors of law:
residence, allowing appellant to use his surname in her scholastic and other records
(Exhs Z, AA, AA-1 to AA-5, W & W-5), appellee had continuously recognized I.
appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCOs]
relatives acknowledging or treating [MONINA] as [FRANCISCOs] daughter (Exh U) or
as their relative (Exhs T & V). On this point, witness Zafiro Ledesma, former Mayor of IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING
Iloilo City, whose spouse belongs to the Lopez clan just like [FRANCISCO], testified PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER,
that [MONINA] has been considered by the Lopezes as a relative. He identified CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE
pictures of the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another PETITIONER AND THE PRIVATE RESPONDENT'S MOTHER AT THE TIME
witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellees first cousin, CONCEPTION WAS SUPPOSED TO HAVE OCCURRED.
testified that appellant was introduced to her by appellees cousin, Remedios Lopez
Franco, as the daughter of appellee Francisco Jison, for which reason, she took her in II.
as [a] secretary in the Merchants Financing Corporation of which she was the
manager, and further allowed her to stay with her family free of board and lodging.
IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT PRIVATE
Still on this aspect, Dominador Savariz declared that sometime in February, 1966
RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS
appellees relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter
NOT CLEAR AND CONVINCING.
of appellee Francisco Jison.

III.
Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well
as [MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt admitted in
evidence as part of [MONINAs] testimony, may serve as circumstantial evidence to IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE
further reinforce [MONINAs] claim that she is [FRANCISCOs] illegitimate daughter by PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE
Esperanza Amolar. SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER
UNDER THE BASIC RULES OF EVIDENCE.
True it is that a trial judges assessment of the credibility of witnesses is accorded
great respect on appeal. But the rule admits of certain exceptions. One such IV.
exception is where the judge who rendered the judgment was not the one who heard
the witnesses testify. [citations omitted] The other is where the trial court had IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN STATEMENT (EXH.
overlooked, misunderstood or misappreciated some facts or circumstances of weight P/EXH. 2) IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE
and substance which, if properly considered, might affect the result of the case. HONORABLE SUPREME COURT.
[citations omitted] In the present case, both exceptions obtain. All of [MONINAs]
witnesses xxx whose testimonies were not given credence did not testify before the
V.
judge who rendered the disputed judgment. xxx

IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING

The Court of Appeals then decreed:
OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES.

WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE
As regards the first error, FRANCISCO insists that taking into account the second
and another one is hereby entered for appellant Monina Jison, declaring her as the
paragraph of MONINAs complaint wherein she claimed that he and Pansay had
sexual relations by about the end of 1945 or the start of 1946, it was physically
impossible for him and Pansay to have had sexual contact which resulted in
MONINAs birth, considering that:
The normal period of human pregnancy is nine (9) months. If as claimed by private
respondent in her complaint that her mother was impregnated by FRANCISCO at the
end of 1945 or the start of 1946, she would have been born sometime in late
September or early October and not August 6, 1946 xxx. The instant case finds
factual and legal parallels in Constantino vs. Mendez,19 thus: xxx
FRANCISCO further claims that his testimony that Pansay was no longer employed by
him at the time in question was unrebutted, moreover, other men had access
to Pansay during the time of or even after her employment by him.
As to the second error, FRANCISCO submits that MONINAs testimonial evidence is
shaky, contradictory and unreliable, and proceeds to attack the credibility of her
witnesses by claiming, in the main, that: (a) Lope Amolar could not have
detected Pansays pregnancy in November 1945 when they met since she would have
been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness
the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an
ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then
under Central Bank supervision and MONINA was the Bank Examiner assigned to
Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever favorable
treatment MONINA received from Danthea was due to the formers employment at
Merchants Financing Company and additional services rendered at Kahirup Hotel;
besides, Danthea admitted that she had no personal knowledge as to the issue of
paternity and filiation of the contending parties, hence Sections 39 and 4020 of Rule
130 of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the
view of the trial court as regards the testimonies of Adela Casabuena and Alfredo
Baylosis.
FRANCISCO further asserts that MONINAs testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other documentary
evidence; and assuming he did, such should be interpreted as a manifestation of
kindness shown towards the family of a former household helper.
Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO
points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA
resided with the families of Eusebio Lopez and Concha Cuaycong because she was
in their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively;
MONINA failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and
MONINAs employment at the accounting firm of Miller, Cruz & Co. was attributable to
her educational attainment, there being absolutely no evidence to prove that
FRANCISCO ever facilitated her employment thereat. Hence, in light of Baluyot v.
Baluyot,21 the quantum of evidence to prove paternity by clear and convincing
evidence, not merely a preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the Court of
Appeals reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and
Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First,
their genuineness could not be ascertained as the persons who issued them did not
testify. Second, in light of Reyes v. Court of Appeals,22 the contents of the baptismal
certificates were hearsay, as the data was based only on what was told to the priest
who solemnized the baptism, who likewise was not presented as a witness.
Additionally, the name of the father appearing therein was Franque Jison, which was
not FRANCISCOs name. Third, in both Exhibits E and F, the names of the childs
parents were listed as Frank Heson and Esperanza Amador (not Amolar).
FRANCISCO further points out that in Exhibit F, the status of the child is listed as
legitimate, while the fathers occupation as laborer. Most importantly, there was no
showing that FRANCISCO signed Exhibits E and F or that he was the one who
reported the childs birth to the Office of the Local Civil Registrar. As to MONINAs
educational records, FRANCISCO invokes Baas v. Baas23 which recognized that
school records are prepared by school authorities, not by putative parents, thus
incompetent to prove paternity. And, as to the photographs presented by MONINA,
FRANCISCO cites Colorado v. Court of Appeals,24 and further asserts that MONINA
did not present any of the persons with whom she is seen in the pictures to testify
thereon; besides these persons were, at best, mere second cousins of FRANCISCO.
He likewise assails the various notes and letters written by his relatives (Exhs. S to V)
as they were not identified by the authors. Finally, he stresses that MONINA did not
testify as to the telephone cards (Exhs. G to L) nor did these reveal the circumstances
surrounding the calls she made from his residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals
interpretation of MONINAs affidavit of 21 September 1971 ran counter to Dequito v.
Llamas,25 and overlooked that at the time of execution, MONINA was more than 25
years old and assisted by counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals failure to
consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCOs arguments, leading
FRANCISCO to file his reply thereto.
On 20 November 1996, we gave due course to this petition and required the parties to
submit their respective memoranda, which they subsequently did.
A painstaking review of the evidence and arguments fails to support petitioner.
Before addressing the merits of the controversy, we first dispose of preliminary
matters relating to the applicable law and the guiding principles in paternity suits. As
to the former, plainly, the Family Code of the Philippines (Executive Order No. 209)
governs the present controversy. As correctly cited by the Court of Appeals,
Uyguangco26 served as a judicial confirmation of Article 256 of the Family
Code27 regarding its retroactive effect unless there be impairment of vested rights,
which does not hold true here, it appearing that neither the putative parent nor the
child has passed away and the former having actually resisted the latters claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be
established in the same way and on the same evidence as that of legitimate children.
Article 172 thereof provides the various forms of evidence by which legitimate filiation
is established, thus:
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code.
For the success of an action to establish illegitimate filiation under the second
paragraph, which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a high standard of proof 28 is required. Specifically, to
prove open and continuous possession of the status of an illegitimate child, there
must be evidence of the manifestation of the permanent intention of the supposed
father to consider the child as his, by continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure charity. Such acts must be of
such a nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in society and in
life, not accidentally, but continuously. 29cräläwvirtualibräry
By continuous is meant uninterrupted and consistent, but does not require any
particular length of time.30cräläwvirtualibräry
The foregoing standard of proof required to establish ones filiation is founded on the
principle that an order for recognition and support may create an unwholesome
atmosphere or may be an irritant in the family or lives of the parties, so that it must be
issued only if paternity or filiation is established by clear and convincing
evidence.31cräläwvirtualibräry
The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence,
and the shifting of the burden of evidence in such cases. Simply put, he who alleges
the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil
case, the burden of proof never parts. However, in the course of trial in a civil case,
once plaintiff makes out a prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiffs prima facie case, otherwise, a
verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having
the burden of proof must produce a preponderance of evidence thereon, with plaintiff
having to rely on the strength of his own evidence and not upon the weakness of the
defendants. The concept of preponderance of evidence refers to evidence which is of
greater weight, or more convincing, that which is offered in opposition to it; at bottom,
it means probability of truth.32
With these in mind, we now proceed to resolve the merits of the instant controversy.
FRANCISCOs arguments in support of his first assigned error deserve scant
consideration. While it has been observed that unlawful intercourse will not be
presumed merely from proof of an opportunity for such indulgence, 33 this does not
favor FRANCISCO. Akin to the crime of rape where, in most instances, the only
witnesses to the felony are the participants in the sexual act themselves, in deciding
paternity suits, the issue of whether sexual intercourse actually occurred inevitably
redounds to the victims or mothers word, as against the accuseds or putative fathers
protestations. In the instant case, MONINAs mother could no longer testify as to the
fact of intercourse, as she had, unfortunately, passed away long before the institution
of the complaint for recognition. But this did not mean that MONINA could no longer
prove her filiation. The fact of her birth and her parentage may be established by
evidence other than the testimony of her mother. The paramount question then is
whether MONINAs evidence is coherent, logical and natural.34cräläwvirtualibräry
The complaint stated that FRANCISCO had carnal knowledge of Pansay by about the
end of 1945. We agree with MONINA that this was broad enough to cover the fourth
quarter of said year, hence her birth on 6 August 1946 could still be attributed to
sexual relations between FRANCISCO and MONINAs mother. In any event, since it
was established that her mother was still in the employ of FRANCISCO at the time
MONINA was conceived as determined by the date of her birth, sexual contact
between FRANCISCO and MONINAs mother was not at all impossible, especially in
light of the overwhelming evidence, as hereafter shown, that FRANCISCO fathered
MONINA, has recognized her as his daughter and that MONINA has been enjoying
the open and continuous possession of the status as FRANCISCOs illegitimate
daughter.
We readily conclude that the testimonial evidence offered by MONINA, woven by her
narration of circumstances and events that occurred through the years, concerning
her relationship with FRANCISCO, coupled with the testimonies of her witnesses,
overwhelmingly established the following facts:
1) FRANCISCO is MONINAs father and she was conceived at the time when her
mother was in the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt acts and conduct
which the Court of Appeals took pains to enumerate, thus:
[L]ike sending appellant to school, paying for her tuition fees, school
uniforms, books, board and lodging at the Colegio del Sagrado de Jesus,
defraying appellants hospitalization expenses, providing her with [a]
monthly allowance, paying for the funeral expenses of appellants mother,
acknowledging appellants paternal greetings and calling appellant his Hija
 or child, instructing his office personnel to give appellants monthly
allowance, recommending appellant for employment at the Miller, Cruz &
Co., allowing appellant to use his house in Bacolod and paying for her
long distance telephone calls, having appellant spend her vacation in his
apartment in Manila and also at his Forbes residence, allowing appellant
to use his surname in her scholastic and other records (Exhs Z, AA, AA-1
to AA-5, W & W-5)
3) Such recognition has been consistently shown and manifested throughout the
years publicly,35 spontaneously, continuously and in an uninterrupted manner.36
Accordingly, in light of the totality of the evidence on record, the second assigned error
must fail.
There is some merit, however, in the third assigned error against the probative value of
some of MONINAs documentary evidence.
MONINAs reliance on the certification issued by the Local Civil Registrar concerning
her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth
purportedly identifying the putative father is not competent evidence as to the issue of
paternity, when there is no showing that the putative father had a hand in the
preparation of said certificates, and the Local Civil Registrar is devoid of authority to
record the paternity of an illegitimate child upon the information of a third
person.37 Simply put, if the alleged father did not intervene in the birth certificate, e.g.,
supplying the information himself, the inscription of his name by the mother or doctor
or registrar is null and void; the mere certificate by the registrar without the signature
of the father is not proof of voluntary acknowledgment on the latters part.38 In like
manner, FRANCISCOs lack of participation in the preparation of the baptismal
certificates (Exhs. C and D) and school records (Exhs. Z and AA) renders these
documents incompetent to prove paternity, the former being competent merely to
prove the administration of the sacrament of baptism on the date so
specified.39 However, despite the inadmissibility of the school records per se to prove
paternity, they may be admitted as part of MONINAs testimony to corroborate her
claim that FRANCISCO spent for her education.
We likewise disagree with the ruling of the Court of Appeals that the certificates
issued by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINAs filiation. Since they are per
se inadmissible in evidence as proof of such filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.
As to Exhibits S, T, U and V, the various notes and letters written by FRANCISCOs
relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez,
respectively, allegedly attesting to MONINAs filiation, while their due execution and
authenticity are not in issue,40 as MONINA witnessed the authors signing the
documents, nevertheless, under Rule 130, Section 39, the contents of these
documents may not be admitted, there being no showing that the declarants-authors
were dead or unable to testify, neither was the relationship between the declarants
and MONINA shown by evidence other than the documents in question.41 As to the
admissibility of these documents under Rule 130, Section 40, however, this requires
further elaboration.
Rule 130, Section 40, provides:
Section 40. Family reputation or tradition regarding pedigree. -- The reputation or
tradition existing in a family previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engravings on rings, family portraits and
the like, may be received as evidence of pedigree. (underscoring supplied)
It is evident that this provision may be divided into two (2) parts: the portion containing
the first underscored clause which pertains to testimonial evidence, under which the
documents in question may not be admitted as the authors thereof did not take the
witness stand; and the section containing the second underscored phrase. What must
then be ascertained is whether Exhibits S to V, as private documents, fall within the
scope of the clause and the like as qualified by the preceding phrase [e]ntries in
family bibles or other family books or charts, engravings on rights [and] family
portraits.
We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as family possessions, or those articles which represent, in effect, a
familys joint statement of its belief as to the pedigree of a person. 42 These have been
described as objects openly exhibited and well known to the family,43 or those which,
if preserved in a family, may be regarded as giving a family tradition. 44 Other
examples of these objects which are regarded as reflective of a familys reputation or
tradition regarding pedigree are inscriptions on tombstones,45 monuments or coffin
plates.46cräläwvirtualibräry
Plainly then, Exhibits S to V, as private documents not constituting "family
possessions" as discussed above, may not be admitted on the basis of Rule 130,
Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section
41 regarding common reputation,47 it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general
repute, the common reputation in the family, and not the common reputation in
community, that is a material element of evidence going to establish pedigree. xxx
[Thus] matters of pedigree may be proved by reputation in the family, and not by
reputation in the neighborhood or vicinity, except where the pedigree in question is
marriage which may be proved by common reputation in the
community.48cräläwvirtualibräry
Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like manner as
MONINA's school records, properly be admitted as part of her testimony to strengthen
her claim that, indeed, relatives of FRANCISCO recognized her as his daughter.
We now direct our attention to MONINAs 21 September 1971 affidavit (Exh. P/Exh.
2), subject of the fourth assigned error, where she attests that FRANCISCO is not her
father. MONINA contends that she signed it under duress, i.e., she was jobless, had
no savings and needed the money to support herself and finish her studies.
Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that filiation
could not be waived and that FRANCISCOs ploy would boomerang upon him. On the
other hand, FRANCISCO asserts that full credence should be afforded Exhibit P as
MONINA was already 25 years old at the time of its execution and was advised by
counsel; further, being a notarized document, its genuineness and due execution
could not be questioned. He relies on the testimony of Jose Cruz, a partner at the
accounting firm of Miller & Cruz, who declared that he intervened in the matter as
MONINA was spreading rumors about her filiation within the firm, which might have
had deleterious effects upon the relationship between the firm and FRANCISCO.
On this issue, we find for MONINA and agree with the following observations of the
Court of Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree
to sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was
only for the consumption of his spouse xxx.
At any rate, if [MONINA] were not his illegitimate daughter, it would have been
uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured
[MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said
affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to
conceal or suppress his paternity of [MONINA]. xxx
Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would have
been unnecessary for him to have gone to such great lengths in order that MONINA
denounce her filiation. For as clearly established before the trial court and properly
appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five
(5) months prior to the execution of the sworn statement in question, hence negating
FRANCISCOs theory of the need to quash rumors circulating within Miller & Cruz
regarding the identity of MONINAs father. Hence, coupled with the assessment of the
credibility of the testimonial evidence of the parties discussed above, it is evident that
the standard to contradict a notarial document, i.e., clear and convincing evidence
and more than merely preponderant,49 has been met by MONINA.
Plainly then, the burden of evidence fully shifted to FRANCISCO.
Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that his
testimony was comprised of mere denials, rife with bare, unsubstantiated responses
such as That is not true, I do not believe that, or None that I know. In declining then to
lend credence to FRANCISCOs testimony, we resort to a guiding principle in
adjudging the credibility of a witness and the truthfulness of his statements, laid down
as early as 1921:
The experience of courts and the general observation of humanity teach us that the
natural limitations of our inventive faculties are such that if a witness undertakes to
fabricate and deliver in court a false narrative containing numerous details, he is
almost certain to fall into fatal inconsistencies, to make statements which can be
readily refuted, or to expose in his demeanor the falsity of his message.
For this reason it will be found that perjurers usually confine themselves to the
incidents immediately related to the principal fact about which they testify, and when
asked about collateral facts by which their truthfulness could be tested, their answers
not infrequently take the stereotyped form of such expressions as I dont know or I
dont remember. xxx50cräläwvirtualibräry
Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove ill-
motive on their part to falsely testify in MONINAs favor may not succeed. As may be
gleaned, the only detail which FRANCISCO could furnish as to the circumstances
surrounding the dismissals of his former employees was that Baylosis allegedly took
advantage of his position while FRANCISCO was in the United States. But aside from
this bare claim, FRANCISCOs account is barren, hence unable to provide the basis
for a finding of bias against FRANCISCO on the part of his former employees.
As to FRANCISCOs other witnesses, nothing substantial could be obtained either.
Nonito Jalandoni avowed that he only came to know of MONINA in June 1988;51 that
during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever
having seen MONINA there, neither did he know of any instructions from
FRANCISCO nor Mr. Lagarto (FRANCISCOs office manager before passing away)
regarding the disbursement of MONINAs allowance.52 Teodoro Zulla corroborated
Jalandonis testimony regarding not having seen MONINA at Nelly Garden and
MONINAs allowance; declared that Alfredo Baylosis was dismissed due to
discrepancies discovered after an audit, without any further elaboration, however; but
admitted that he never prepared the vouchers pertaining to FRANCISCOs personal
expenses, merely those intended for one of FRANCISCOs haciendas.53 Then, Iigo
Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis
was dismissed by Mr. Jison for irregularities, while Superticioso was informed by
FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise
denied that MONINA received money from FRANCISCOs office, neither was there a
standing order from FRANCISCO to release funds to her.54cräläwvirtualibräry
It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINAs evidence. The former merely consist of
denials as regards the latters having gone to Nelly Garden or having received her
allowance from FRANCISCOs office, which, being in the form of negative testimony,
necessarily stand infirm as against positive testimony;55 bare assertions as regards
the dismissal of Baylosis; ignorance of FRANCISCOs personal expenses incapable of
evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay
evidence as regards the cause for the dismissals of Baylosis and Tingson. But what
then serves as the coup de grce is that despite Superticiosos claim that he did not
know MONINA,56 when confronted with Exhibit H, a telephone toll ticket indicating
that on 18 May 1971, MONINA called a certain Eing at FRANCISCOs office,
Superticioso admitted that his nickname was Iing and that there was no other person
named Iing in FRANCISCOs office.57cräläwvirtualibräry

All told, MONINAs evidence hurdled the high standard of proof required for the
success of an action to establish ones illegitimate filiation when relying upon the
provisions regarding open and continuous possession or any other means allowed by
the Rules of Court and special laws; moreover, MONINA proved her filiation by more
than mere preponderance of evidence.

The last assigned error concerning laches likewise fails to convince. The essential
elements of laches are: (1) conduct on the part of the defendant, or of one under
whom he claims, giving rise to the situation of which the complaint seeks a remedy;
(2) delay in asserting the complainants rights, the complainant having had knowledge
or notice of the defendants conduct as having been afforded an opportunity to
institute a suit; (3) lack of knowledge or notice on the part of the defendant that the
complaint would assert the right in which he bases his suit; and (4) injury or prejudice
to the defendant in the event relief is accorded to the complainant, or the suit is not
held barred.58 The last element is the origin of the doctrine that stale demands apply
only where by reason of the lapse of time it would be inequitable to allow a party to
enforce his legal rights.59cräläwvirtualibräry

As FRANCISCO set up laches as an affirmative defense, it was incumbent upon him

to prove the existence of its elements. However, he only succeeded in showing
MONINAs delay in asserting her claim, but miserably failed to prove the last element.
In any event, it must be stressed that laches is based upon grounds of public policy
which requires, for the peace of society, the discouragement of stale claims, and is
principally a question of the inequity or unfairness of permitting a right or claim to be
enforced or asserted. There is no absolute rule as to what constitutes laches; each
case is to be determined according to its particular circumstances. The question of
laches is addressed to the sound discretion of the court, and since it is an equitable
doctrine, its application is controlled by equitable considerations. It cannot be worked
to defeat justice or to perpetuate fraud and injustice. 60 Since the instant case involves
paternity and filiation, even if illegitimate, MONINA filed her action well within the
period granted her by a positive provision of law. A denial then of her action on
ground of laches would clearly be inequitable and unjust.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and

the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No.
32860 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 86639 June 2, 1994
MA. THERESA R. ALBERTO, petitioner,
vs.
COURT OF APPEALS, INTESTATE ESTATE OF JUAN M. ALBERTO, and
YOLANDA R. ALBERTO, respondents.
Martiniano P. Vivo for petitioner.
M.M. Lazaro & Associates for respondents.
ROMERO, J.:
When a putative father manifests openly through words and deeds his recognition of a
child, the courts can do no less than confirm said acknowledgment. As the immortal
bard Shakespeare perspicaciously said: "Let your own discretion be your tutor; suit the
action to the word, the word to the action." Herein deceased father cannot possibly be
charged with indecisiveness or vacillation for he suited his action to his word and his
word to his action.
In the instant case, we have, therefore, affirmed the decision of the probate court
declaring petitioner as having acquired the status of a natural child of the deceased
Juan M. Alberto and, as such, entitled to participate in the latter's estate.
On September 18, 1953, a child named Ma. Theresa Alberto was born out of wedlock
to one Aurora Reniva with Juan M. Alberto as the alleged father. Accordingly, she used
"Alberto" as her surname in all her school records and correspondences.
On September 18, 1967, Juan M. Alberto, felled by a bullet from an assassin’s gun,
died intestate.
His widow, Yolanda R. Alberto, filed a petition for the administration of his estate on
January 10, 1968. After the publication of notices, she was appointed as the
administratrix of the estate. After the Inventory and Appraisal and the Administratrix'
Accounting were approved on August 1, 1970 and on April 29, 1971 respectively, the
proceedings were ordered closed and terminated.
On September 15, 1978, Ma. Theresa Alberto filed a motion for leave to intervene as
oppositor and to re-open the proceedings praying that she be declared to have acquired
the status of a natural child and as such, entitled to share in the estate of the deceased.
The motion was granted by the probate court.
Upon the presentation by the parties of their respective evidence during the trial, the
probate court was convinced that indeed, Ma. Theresa Alberto had been in continuous
possession of the status of a natural child. Thereupon, it rendered a decision compelling
the decedent’s heirs and estate to recognize her as a natural daughter and to allow her
to participate in the estate proceedings. The dispositive portion of the decision reads
as follows:
WHEREFORE, judgment is hereby rendered in favor of oppositor
and against the estate of the deceased Juan M. Alberto —
(a) Declaring oppositor Ma. Theresa R. Alberto as having acquired
the status of a natural child of the late Gov. Juan M. Alberto;
(b) Ordering the administratrix and widow of the deceased and their
children, namely, Mary Joy, Maria Rebecca, Juan, Jr., Juan III, Maria
Yolanda and Juan IV, all surnamed Alberto, to recognize and
acknowledge oppositor as an acknowledged natural child of the late
Gov. Alberto;
(c) Declaring oppositor as one of the heirs of the late Gov. Juan M.
Alberto;
(d) Ordering the administratrix to partition the deceased’s estate and
turn over to oppositor her participation therein equivalent to one-half
(1/2) of the share of each legitimate child; and
(e) Ordering the administratrix to pay oppositor the sum of
P10,000.00 as attorney’s fees and expenses of litigation.
Costs against the administratrix.
SO ORDERED. 1
The probate court’s findings are quoted hereunder, to wit:
1) In the case at bar, the Court believes, and so holds, that the
oppositor has been in continuous possession of the status of a child
of Juan Alberto by his direct acts as well as the acts of his family, as
follows:
(a) The deceased gave the oppositor sums of money for her
schooling;
(b) The deceased made known to his friends and relatives that she
was his daughter; and
(c) He made known to the personnel of the International School
where oppositor was enrolled that she was his daughter.
2) The following incidents would show the direct acts of the family of
the deceased.
(a) When the deceased’s younger sister, Mrs. Aurita Alberto Solidum
asked that the oppositor be sent to her house in her Sunday best to
meet her father for the first time;
(b) When Fr. Arcilla brought the oppositor to the bedside of the
deceased in the hospital and Fr. Arcilla asked the guard to give way
to her as she was a member of the family;
(c) When the step-mother of the deceased, during the wake,
introduced the oppositor to her youngest sister as an elder sister.
3) Prescinding from the foregoing, there is sufficient evidence to
prove that the oppositor is the child of the deceased.
1. Oppositor’s mother, Aurora Reniva, testified:
(a) of an indiscretion that led to the conception of and giving birth to
the oppositor;
(b) that Mrs. Aurita Solidum arranged the meeting between the
oppositor and the deceased at the MOPC; (This particular testimony
was corroborated by Cristeta Andaya, former maid of Mrs. Solidum,
and by the oppositor) and
(c) that Juan Alberto had been sending her money from time to time.
2) Oppositor also testified that:
(a) She had her first meeting with her father at the MOPC where he
gave her P500.00 personally and two telephone numbers where he
could be contacted and where they talked about her name, age and
other matters.
(b) She had other meetings with her father at the MOPC on which
occasions her father also gave her money.
(c) The deceased visited her two times at the International School
whose rules on visitors were strict and when her father visited her,
the secretary of the principal told her that her father was waiting for
her. This showed that the deceased had identified himself to the
personnel of the school that he was the father of the oppositor.
(d) He promised to see her in her school during her birthday on
September 18, 1968 but was not able to do so because of his
untimely death.
(e) The deceased promised to bring the oppositor to Catanduanes
but failed likewise because of his death.
(f) When oppositor and her mother went to the PGH on the occasion
of her father’s death, Fr. Arcilla held her by the hand and asked the
guard to make way for her because she was a child of Juan Alberto.
(g) After the wake for her deceased father, the deceased’s step-
mother, Saturnina Alberto, introduced her as a sister to Joy Alberto
her half-sister.
(h) Congressman Jose Alberto allowed her associates, upon her
representations, to use the ballroom of the Regent of Manila for
practice purposes. Congressman Alberto was the owner of the
Regent of Manila.
(i) Her uncles and aunts, i.e., brothers and sisters of her father,
regarded her as their niece and introduced her to others as the eldest
daughter of Juan Alberto.
(j) The children of the brothers and sisters of Juan Alberto recognized
her as their cousin.
3) Jose Tablizo testified that:
(a) There was a strong physical resemblance between the deceased
and the oppositor.
(b) The deceased and the oppositor wrote similarly.
(c) It was known among the friends of the deceased, particularly the
Breeze Gang, composed of the witness, Jose Tablizo, the deceased
and 4 others.
(d) Sometime in 1967, the deceased showed him the report card of
the Oppositor and boasted of her high grades.
 (e) The friends of the deceased had a party in Virac, Catanduanes
for the oppositor whom they considered as the deceased’s daughter.
(This was corroborated by Silverio Taberara.)
4) Atty. Martiniano Vivo testified that Commissioner of Immigration
Edmundo Reyes, as lawyer for the deceased, made an appointment
with him (Atty. Vivo) for a conference, at which they discussed the
latter’s letter to the deceased regarding the oppositor. In said
conference, Com. Reyes said that the deceased was not denying
that he was the father of the oppositor. And because of his marital
status and the fact that he was a public official, he wanted to avoid
public scandal with the promise to support the oppositor quietly
through a cousin, Fr. Arcilla. 2
The Court of Appeals reversed the above decision of the probate court on the strength
of the following observations:
Assuming the foregoing to be true, we do not believe they satisfy the
degree of proof to establish that oppositor was in continuous
possession of the status of a natural child of the deceased.
In one case, the following facts were proved; that
two nurses took care of the children at the expense
of the defendant; that said defendant kissed the
children, called them sons, and ordered that they
be taken care of very well; that he gave the money
for the necessities of the mother and the six
children, the oldest of whom called the father; that
he visited the mother, complained of his big family,
and was publicly regarded as the father of the
children. It was held that these were not sufficient
to be a basis for a declaration of paternity. They
may show that the defendant was convinced of his
paternity in relation to the children; but they do not
show any intent on his part to place such children
in the possession of status of natural children. The
continued possession of such
status cannot be founded on conjectures and
presumption. So, also, the mere fact that
defendant’s mother used to visit the child, cannot
be considered as conduct of his family sufficient to
confer
the uninterrupted possession of the status of a
natural child.
(1 Tolentino, Civil Code of the Philippines, 1983
ed., pp. 604-605, citing, Sentencia, 12 October
1907; Gustilo vs. Gustilo, et al., 14 SCRA 149;
Sentencia, 9 May 1921; Potot vs. Ycong, No.
6651, 22 March 1941, 40 O.G. No. 4, 26 July 1941,
p. 748)
We find the evidence of oppositor-appellee even weaker than that
proven in the aforequoted citation. As a matter of fact, oppositor's
Exhibit W-1, a letter written by oppositor to Jose Tablizo after the
death of the deceased, betrays a lack of association between the
deceased and oppositor such as normally characterizes the
relationship between father and child. It gives the impression that the
deceased studiously distanced himself from the oppositor and had
no intention whatsoever of recognizing oppositor as his child. The
pertinent portion of the letter reads:
I have always been proud to be JMA’s eldest
daughter, and I feel even prouder after I heard
from people like you. You were the ones that knew
him most, shared his dreams as a young man, and
witnessed his struggle from Palmera’s slums to
Forbes Park. You saw him rise from cargador to
lawyer and, finally, to governor; I only heard about
them through Mama. His life was a novel, and if I
were to help write it, I would be able to contribute
but a few pages, for I knew him only as a Big Man.
It is YOU who had a part in the first adventures of
that same novel, and I envy you. (p. 35, Folder of
Exhibits) 3
Hence this petition.
May the estate and heirs of deceased Juan M. Alberto be ordered to recognize
petitioner as the deceased’s natural daughter on the basis of the evidence presented
by petitioner to establish her claim that she has been in continuous possession of the
status of a natural child?
We rule in the affirmative.
In the probate court, the following have been established:
1) that prior to Juan M. Alberto's marriage to Yolanda Reyes, herein private respondent,
Juan M. Alberto and Aurora Reniva, mother of herein petitioner, were sweethearts;
2) that as a consequence of an indiscretion, Aurora Reniva conceived and gave birth
to herein petitioner Ma. Theresa Alberto on September 18, 1953;
3) that petitioner used 'Alberto' as her surname in all her school records and Juan M.
Alberto was known to be her father;
4) that through Fr. Arcilla, a first cousin of Juan M. Alberto, money was given to Aurora
Reniva;
5) that when petitioner was about nine (9) years old, Mrs. Aurita Solidum, the youngest
sister of Juan M. Alberto, arranged the first meeting between petitioner and Juan M.
Alberto at the MOPC and during said meeting, they talked about petitioner, the
deceased gave petitioner P500.00 and two telephone numbers;
6) that Juan M. Alberto would have visited petitioner on her birthday in her school,
International School, if not for his untimely death on September 18, 1967;
7) that when petitioner and her mother went to the PGH on the occasion of Juan M.
Alberto’s death, Fr. Arcilla held her by the hand and asked the guard to make way for
her as she was a daughter of Juan M. Alberto;
8) that after the wake for deceased Juan M. Alberto, his step mother, Saturnina Alberto
introduced petitioner to Joy Alberto as the latter’s sister;
9) that the siblings of Juan M. Alberto regarded petitioner as their niece and introduced
her to their children as the eldest daughter of Juan M. Alberto;
10) that the children of Juan M. Alberto’s siblings regarded her as their cousin;
11) that petitioner was known by Juan M. Alberto’s friends as his daughter;
12) that Juan M. Alberto showed Jose Tablizo the grades of petitioner and remarked
that those were the grades of his daughter.
Private respondent, Yolanda Alberto, the sole witness for private respondents, denied
that Juan M. Alberto ever recognized Ma. Theresa Alberto as his daughter. She
presented in evidence Aurora Reniva’s letters to Juan M. Alberto dated December 23,
1955, September 27, 1954 and March 15, 1960; Aurora Reniva’s letter to Fr. Arcilla
dated December 23, 1955; letter of Zenaida Reniva to Juan M. Alberto dated
September 16, 1953, to prove that Juan M. Alberto refused to recognize Ma. Theresa
Alberto as his own. 4
However, these letters do not prove that Juan M. Alberto refused to recognize Ma.
Theresa Alberto. All that the letters stated was that Aurora Reniva was having a difficult
time raising a child by her own self and therefore, she was seeking the assistance of
Juan M. Alberto. Private respondent quoted as Exhibit "3-B" the portion of Aurora
Reniva’s letter dated March 15, 1960 which says:
. . . I am just wondering why after all those years of patient waiting,
you still do not give a damn to her. 5
The full text of the paragraph, however, reads as follows:
On the 23rd of this month, Maria Theresa P. Alberto will graduate
from the Prep School of Holy Ghost College. I am just wondering why
after all those years of patient waiting, you still do not give a damn to
her. I thought, as I was told before by Fr. Arcilla, that I just pray and
wait because he said pretty soon you will be sending her money for
support. So far, only the 300 pesos was received by us last October,
1959. For it, I am very grateful because it helped me a lot in our
wants. 6
The letter itself shows that Juan M. Alberto was not completely indifferent towards Ma.
Theresa Alberto. He did provide her support whenever he could.
The latest letter that was presented in evidence was dated March 15, 1960. At the time,
petitioner and Juan M. Alberto had not yet met. About two years later, when petitioner
was nine years old, Mrs. Aurita Solidum arranged the first meeting between petitioner
and the deceased. This initial meeting was followed by many more. Moreover, it is
noteworthy that Juan M. Alberto never took any step to stop petitioner from using his
surname. The testimony of Jose Tablizo established his recognition of Ma. Theresa
Alberto as his daughter. He testified that Juan M. Alberto showed him two report cards
of Ma. Theresa which showed straight "A's." He said "Boy! Great!" and Juan M. Alberto
said that those were the grades of his daughter. 7 This testimony is now being
discredited for being hearsay. This Court holds that the same falls within the exceptions
to the hearsay rule. Sec. 38, Rule 130 of the Rules of Court provides as follows:
Sec. 38. Declaration Against Interest. — The declaration made by a
person deceased, or unable to testify, against the interest of the
declarant, if the fact asserted at the declaration was at the time it was
made so far contrary to declarant's own interest that a reasonable
man in his position would not have made his declaration unless he
believed it to be true, may be received in evidence against himself or
his successors in interest and against third persons.
As found by the trial court, recognition of petitioner's status as a natural daughter of
Juan M. Alberto was made, not only by the latter, but by his relatives as well — Fr.
Cipriano Arcilla, Jose Alberto, Aurita Solidum and Saturnina Alberto, among others.
Private respondent only had to present any one of those relatives to negate petitioner's
testimony that she had been acknowledged by them as the eldest daughter of the
deceased. Her failure to do so baffles this Court. If indeed Ma. Theresa Alberto were
fabricating her testimony, the family of the deceased would have been more than willing
to destroy the claims of an intruder. Under the circumstances, it is safe for us to assume
that had any of the relatives mentioned by petitioner been presented as witness for
private respondent, their testimonies would be detrimental to the latter's cause.
In view of the foregoing, we hold that petitioner has been in continuous possession of
the status of a natural child of the deceased in accordance with Article 283 of the Civil
Code which provides, inter alia:
Art. 283. In any of the following cases, the father is obliged to
recognize the child as his natural child:
xxx xxx xxx
 (2) when the child is in continuous possession of status of a child of
the alleged father by the direct acts of the latter or his family.
The Court of Appeals, in reversing the decision of the probate court, stated as follows:
We find the evidence of oppositor-appellee even weaker than that
proven in the aforequoted citation. As a matter of fact, oppositor's
Exhibit W-1, a letter written by oppositor to Jose Tablizo after the
death of the deceased, betrays a lack of association between the
deceased and oppositor such as normally characterizes the
relationship between father and child. It gives the impression that the
deceased studiously distanced himself from the oppositor and had
not intention whatsoever of recognizing oppositor as his child. The
pertinent portion of the letter reads:
I have always been proud to be JMA’s eldest daughter, and I feel
even prouder after I heard from people like you. You were the ones
that knew him most, shared his dreams as a young man, and
witnessed his struggle from, palmera’s slums to Forbes Park. You
saw him rise from cargador to lawyer and, finally, to governor; I only
heard about them through Mama. His life was a novel, and if I were
to help write it, I would be able to contribute but a few pages, for I
knew him only as a Big Man. It is YOU who had a part in the first
adventures of that same novel, and I envy you. 8
What a poignant novel this daughter could well author as she now seeks to establish
indubitable parental links with a father who sired her some forty-one years ago. Why
he desisted from marrying the mother of this girl at a time when no impediment blocked
the way is a matter one can merely conjecture at.
While he did contract marriage subsequently with another woman, it was only too clear
that he had no intentions of closing definitively that chapter in his life when he begat his
first-born. Of the different categories of illegitimate children under the old Civil Code,
the natural child occupies the highest position, she being the child of parents who, at
the time of her conception, were not disqualified by any impediment to marry each other
and could, therefore, have contracted a valid marriage. Often the fruit of first love, she
is ensconced firmly in her parent's hearts. No subsequent liaisons, though blessed with
legitimate offspring, can completely obliterate those early memories.
A shared past intimacy between the putative parents and the clear marks of heredity
stamped on the brow of their offspring are not to be denied. Thus, whether openly or
furtively, a father in the situation of Juan M. Alberto could not have resisted manifesting
signs of concern and care insofar as his firstborn is concerned. If, at an early age, the
child shows much talent and great promise as petitioner in this case apparently did, it
is understandable, and even to be expected, that the father would proudly step forward
to claim paternity — either through his direct acts or those of his family, or both, as in
instant case.
In the case at bench, evidence is not wanting from which it may logically be concluded
that the deceased Juan M. Alberto took no pains to conceal his paternity. No less than
his younger sister, his stepmother, his priest-cousin, several relatives and close friends
were categorically informed of the relationship and they accepted the same as fact.
Understandably, considering the strait-laced mores of the times and the social and
political stature of Juan M. Alberto and his family, those who were privy to the
relationship observed discreetness. But he himself openly visited his daughter in
school, had meetings with her at the MOPC on which occasions he gave her money
and introduced her proudly to his gangmates.
Where the daughter admits to envy in a letter to her father’s friend because the latter
played a greater role in her father’s life, this is but the natural expression of a wistful
longing of a child to reach out to her biological father. Far be it for us to interpret such
sentiment as a betrayal of "a lack of association between the deceased and oppositor
such as normally characterizes the relationship between father and child." In this
instance, the lack of association cannot be helped for the relationship was far from
normal.
Much less do we take it as giving the impression that the deceased "studiously
distanced himself from the oppositor and had no intention whatsoever of recognizing
oppositor as his child." On the contrary, during his lifetime, Juan M. Alberto acted in
such a manner as to evince his intent to recognize Ma. Theresa Alberto, herein
oppositor, as his flesh and blood, first, by allowing her from birth to use his family name;
second, by giving her and her mother sums of money by way of support and lastly, by
openly introducing her to members of his family, relatives and friends as his daughter.
Supplementing such unmistakable acts of recognition were those of his kin and
gangmates manifesting open acceptance of such relationship. Taken altogether, the
claimed filiation would be hard to disprove.
Since the oppositor seeks a judicial declaration that she be recognized as a natural
child to enable her to participate in the estate of the deceased, Article 285 of the Civil
Code prescribing the period when such action should be brought governs. It provides:
Art. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in
the following cases:
(1) If the father or mother died during the minority of the child, in
which case the latter may file the action before the expiration of four
years from the attainment of his majority.
xxx xxx xxx
The oppositor's case falls clearly under the above exception.
Juan M. Alberto died during the minority of petitioner, that is, on September 18, 1967
— the day petitioner turned fourteen. As such, petitioner had four years from the time
she reached twenty-one on September 18, 1974, which was then the age of majority,
within which to bring the aforesaid action. Thus, petitioner had until September 18, 1978
within which to file the action for recognition. Petitioner filed her motion for leave to
intervene as oppositor and to re-open the proceedings with the prayer that she be
declared to have acquired the status of a natural child and as such, entitled to share in
the estate of the deceased, on September 15, 1978. Said motion was, therefore,
seasonably filed three days before the expiration of the four-year period.

WHEREFORE, in view of the foregoing, this petition is hereby GRANTED, the decision
of the Court of Appeals is REVERSED and that of the probate court AFFIRMED.

SO ORDERED.

Feliciano, Bidin, Melo and Vitug, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 111180 November 16, 1995
DAISIE T. DAVID, petitioner,
vs.
COURT OF APPEALS, RAMON R. VILLAR, respondents.
MENDOZA, J.:
Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar,
a businessman in Angeles City. Private respondent is a married man and the father of
four children, all grown-up. After a while, the relationship between petitioner and private
respondent developed into an intimate one, as a result of which a son, Christopher J.,
was born on March 9, 1985 to them. Christopher J. was followed by two more children,
both girls, namely Christine, born on June 9, 1986, and Cathy Mae on April 24, 1988.
The relationship became known to private respondent's wife when Daisie took
Christopher J, to Villar's house at Villa Teresa in Angeles City sometime in 1986 and
introduced him to Villar's legal wife.
After this, the children of Daisie were freely brought by Villar to his house as they were
eventually accepted by his legal family.
In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of
age, to go with his family to Boracay. Daisie agreed, but after the trip, Villar refused to
give back the child. Villar said he had enrolled Christopher J. at the Holy Family
Academy for the next school year.
On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.
After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision,
the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
in favor of the petitioner and against the respondent:
1. the rightful custody of the minor Christopher J. T. David is hereby
given to the natural mother, the herein petitioner Daisie T. David;
2. respondent is hereby ordered to give a temporary support of
P3,000.00 a month to the subject minor Christopher J. T. David,
Christine David and Cathy Mae David to take effect upon the finality
of this decision; and
3. to pay the costs of this suit.
SO ORDERED.
On appeal, the Court of Appeals reversed, holding:
We agree with the respondent-appellant's view that this is not proper
in a habeas corpus case.
Law and jurisprudence wherein the question of custody of a minor
child may be decided in a habeas corpus case contemplate a
situation where the parents are married to each other but are
separated. This is so because under the Family Code, the father and
mother have joint parental authority over their legitimate children and
in case of separation of the parents there is need to determine rightful
custody of their children. The same does not hold true in an
adulterous relationship, as in the case at bar, the child born out of
such a relationship is under the parental authority of the mother by
express provision of the law. Hence, the question of custody and
support should be brought in a case singularly filed for the purpose.
In point of fact, this is more advisable in the case at bar because the
trial court did not acquire jurisdiction over the other minor children of
the petitioner-appellee and respondent-appellant and, therefore,
cannot properly provide for their support.
Admittedly, respondent-appellant is financially well-off, he being a
very rich businessman; whereas, petitioner-appellee depends upon
her sisters and parents for support. In fact, he financially supported
petitioner-appellee and her three minor children. It is, therefore, for
the best interest of Christopher J that he should temporarily remain
under the custody of respondent-appellant until the issue on custody
and support shall have been determined in a proper case.
WHEREFORE, the decision appealed from is hereby SET ASIDE,
and a NEW ONE ENTERED dismissing the petition for habeas
corpus in Special Proceeding No. 4489.
Daisie in turn filed this petition for review of the appellate court's decision.
Rule 102, §1 of the Rules of Court provides that "the writ of habeas corpus shall extend
to all cases of illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the person entitled
thereto."
It is indeed true, as the Court of Appeals observed, that the determination of the right
to the custody of minor children is relevant in cases where the parents, who are married
to each other, are for some reason separated from each other. It does not follow,
however, that it cannot arise in any other situation. For example, in the case of Salvaña
v. Gaela,1 it was held that the writ of habeas corpus is the proper remedy to enable
parents to regain the custody of a minor daughter even though the latter be in the
custody of a third person of her free will because the parents were compelling her to
marry a man against her will.
In the case at bar, Christopher J. is an illegitimate child since at the time of his
conception, his father, private respondent Ramon R. Villar, was married to another
woman other than the child's mother. As such, pursuant to Art. 176 of the Family Code,
Christopher J. is under the parental authority of his mother, the herein petitioner, who,
as a consequence of such authority, is entitled to have custody of him. 2 Since,
admittedly, petitioner has been deprived of her rightful custody of her child by private
respondent, she is entitled to issuance of the writ of habeas corpus.
Indeed, Rule 1021 §1 makes no distinction between the case of a mother who is
separated from her husband and is entitled to the custody of her child and that of a
mother of an illegitimate child who, by law, is vested with sole parental authority, but is
deprived of her rightful custody of her child.
The fact that private respondent has recognized the minor child may be a ground for
ordering him to give support to the latter, but not for giving him custody of the child.
Under Art. 213 of the Family Code, "no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise."3
Nor is the fact that private respondent is well-off a reason for depriving petitioner of the
custody of her children, especially considering that she has been able to rear and
support them on her own since they were born. Petitioner is a market vendor earning
from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered. She
augments her income by working as secretary at the Computer System Specialist, Inc.
earning a monthly income of P4,500.00. She has an arrangement with her employer so
that she can personally attend to her children. She works up to 8:00 o'clock in the
evening to make up for time lost during the day. That she receives help from her parents
and sister for the support of the three children is not a point against her. Cooperation,
compassion, love and concern for every member of the family are characteristics of the
close family ties that bind the Filipino family and have made it what it is.
Daisie and her children may not be enjoying a life of affluence that private respondent
promises if the child lives with him. It is enough, however, that petitioner is earning a
decent living and is able to support her children according to her means.
The Regional Trial Court ordered private respondent to give temporary support to
petitioner in the amount of P3,000.00 a month, pending the filing of an action for
support, after finding that private respondent did not give any support to his three
children by Daisie, except the meager amount of P500.00 a week which he stopped
giving them on June 23, 1992. He is a rich man who professes love for his children. In
fact he filed a motion for the execution of the decision of the Court of Appeals, alleging
that he had observed his son "to be physically weak and pale because of malnutrition
and deprivation of the luxury and amenities he was accustomed to when in the former
custody of the respondent." He prayed that he be given the custody of the child so that
he can provide him with the "proper care and education."
Although the question of support is proper in a proceeding for that purpose, the grant
of support in this case is justified by the fact that private respondent has expressed
willingness to support the minor child. The order for payment of allowance need not be
conditioned on the grant to him of custody of the child. Under Art. 204 of the Family
Code, a person obliged to give support can fulfill his obligation either by paying the
allowance fixed by the court or by receiving and maintaining in the family dwelling the
person who is entitled to support unless, in the latter case, there is "a moral or legal
obstacle thereto."
In the case at bar, as has already been pointed out, Christopher J., being less than
seven years of age at least at the time the case was decided by the RTC, cannot be
taken from the mother's custody. Even now that the child is over seven years of age,
the mother's custody over him will have to be upheld because the child categorically
expressed preference to live with his mother. Under Art. 213 of the Family Code, courts
must respect the "choice of the child over seven years of age, unless the parent chosen
is unfit" and here it has not been shown that the mother is in any way unfit to have
custody of her child. Indeed, if private respondent loves his child, he should not
condition the grant of support for him on the award of his custody to him (private
respondent).
WHEREFORE, the decision of the Court of Appeals is REVERSED and private
respondent is ORDERED to deliver the minor Christopher J. T. David to the custody of
his mother, the herein petitioner, and to give him temporary support in the amount of
P3,000.00, pending the fixing of the amount of support in an appropriate action.
SO ORDERED.
Narvasa, C.J., Regalado and Puno, JJ., concur.
Francisco, J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 106539 July 18, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TORTILLANO NAMAYAN, accused-appellant.
FRANCISCO, J.:
Convicted of rape for having carnal knowledge with complainant Margie Pagaygay, a
woman deprived of reason and mentally retarded, against her will, by means of violence
and intimidation, sometime in March, 1991, in Barangay Giliga-on, Siaton, Negros
Oriental, appellant Tortillano Namayan, alias Dodo was sentenced "to suffer the penalty
of imprisonment (sic) of reclusion perpetua; to compulsorily acknowledge the child
when born as a result of his act; to render support to the same child until he or she
attains the age of 21 years; to indemnify the offended party the sum of P30,000.00 and
to pay the cost".
Appellant now seeks the reversal of the decision in this appeal assigning as errors the
following:
I from February 5, 1991 to April 12, 1991 due to a pending case of illegal discharge of
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF
THE CRIME OF RAPE EVEN THOUGH THERE WAS PHYSICAL
IMPOSSIBILITY OF COMMITTING THE SAME, THE ACCUSED
BEING DETAINED IN JAIL AT THE TIME OF THE INCIDENT.
II
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE AS
DEFINED AND PENALIZED UNDER ART. 335 OF THE REVISED
PENAL CODE DESPITE INSUFFICIENCY OF EVIDENCE TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT. 1
This much has been established by the evidence for the prosecution: The complainant,
who was twenty years old at the time of the alleged offense, is moderately retarded with
a mental age comparable to that of a three to seven year old child. Her mental defect
was found to be congenital in nature. She had an impaired judgment and insight and
an I.Q. of 25 to 50. She could neither do simple arithmetical solutions nor answer
hypothetical questions. She had difficulty remembering dates, times and places.
Although she went to school for four years, she was unable to pass Grade 1. 2
Sometime in July, 1991, complainant's mother, Estelita Pagaygay, noticed the bulging
stomach and enlarging breasts of complainant. The mother surmised that she was
pregnant. On July 30, 1991, she was brought to the Negros Oriental Provincial Hospital.
There, Dr. Teresito Orbito examined her and subjected her to an ultra sound
examination. She was found to be four to five months pregnant.
Complainant blamed appellant, their long-time neighbor in Barangay Giliga-on,
Municipality of Siaton, Negros Oriental, for her condition. She disclosed that appellant
raped her on several occasions. In the month of March, 1991, as she was fetching
water from an artesian well, appellant suddenly approached her, pulled out a hunting
knife and poked it at her neck. At knife's point, she was brought to a banana hill where,
sheltered by the clump, appellant undressed her, removed her panty and had
intercourse with her. Appellant offered her five pesos but she refused.3
The incident was subsequently repeated but this time it took place in a bathroom near
the artesian well. Appellant who was then taking a bath and in his underwear suddenly
pushed complainant who had come to fetch water from the well, to the ground. He
removed her underwear and inserted his penis into her vagina while telling her that they
were to make a child. This sexual assault was repeated a third time when she was sent
by her mother to buy a bottle of beer. Appellant approached complainant with a hunting
knife in hand and brought her to a bridge where he again had carnal knowledge with
her.4
The appellant simply made a bland denial of his presence at the place, time and date,
charged in the information. According to him he could not have committed the alleged
crime because he was under detention at the Siaton Municipal Jail, Negros Oriental
firearms filed against him. On this score, he lays stress on the testimony and
certification of Ruben Gadayan in that as the jailer of Siaton, he checks the inmates
twice a day, once in the morning and in the afternoon and that the appellant was
released only on April 12, 1991 upon an order of Judge Fe Bustamante due to the
withdrawal of the case against him. Appellant further harps on the presumption that
Gadayan, being a law enforcer, is presumed to have regularly performed his duty. 5 It
appears, in this connection, that appellant was also charged of frustrated murder on
November 28, 1990 and the case was provisionally dismissed on January 24, 1991. 6
The court cannot repose much reliance on the testimony of Gadayan. No less than
Gadayan himself confirmed the fact that his duty is limited to entering into the record
the detention prisoners as well as those facing criminal charges. It does not include
"guarding of the detainees". Furthermore, some detainees are even allowed to live
outside the Municipal Jail upon the discretion of the guard in-charge. Thus:
 Q. Mr. Gadayan, you said you are the jailer of Q — On March 6, 1991 did you see the accused,
Siaton, Negros Oriental. What do you mean by your neighbor in
that? Giliga-on, Siaton, Negros Oriental?

A. The jailer is the one incharge of the records of A — Yes.

the inmates or prisoners.
Q — Where did you see him?
Q. In short, your duty as a jailer does not include
guarding of detainees? A — I saw him in sitio Looc, that was fiesta, March
6, 1991, playing "hantak".
A. Yes, sir.
Q — Where is this Looc situated?
xxx xxx xxx
A — Half (1/2) kilometer from our barangay.
Court:
Q — Looc is part of Giligaon?
Q. Your duty being a jailer is only to take the
records of those prisoners and to enter into the A — Yes.
police blotter those persons who are to be
detained and who are facing criminal charges?
Q — Was there any unusal (sic) incident that
happened on March 6, 1991?
A. Yes, sir.7
A — Yes.
xxx xxx xxx
Q — What was that?
Q. So you do not know if some detainees are
placed by the guard at living out after you check
up at 8:00 o'clock in the morning? A — There was a fistfight between him, Tortillano
Namayan, and a person by the name of "Bongoy".
A. I do not know — its up to the outgoing guard to
allow him. It depends upon the discretion of the Q — The following day after that fistfight, was
guard.8 there any complaint before the office of your
mother the barangay captain of barangay
Giligaon?
Clearly, from the foregoing, Gadayan is not in a position to categorically state that
appellant never left his detention cell during the period when the alleged acts of rape
were committed. Similarly, his certification (Exhibit "1") merely contains a statement A — The father-in-law of "Bongoy" reported the
that appellant was a detainee at the municipal jail from February 5, 1991 to April 12, matter to my mother.
1991. It does not recite any other details which would duly prove that appellant never
left the place during the period of his detention. Q — What was the report about?

At any rate, the presence of the appellant at the time and place essential to the A — About the fighting of "Bongoy" his son-in-law
commission of the offense charged has been sufficiently established by the prosecution with Tortillano Namayan.
witnesses Lilian Gomez and Gaudencio Pagaygay who testified as follows:
Q — What is the full name of "Bongoy"?
LILIAN Gomez:
A — I do not know. They just call him "Bongoy" but
the surname is Sarita.
Q — Aside from that incident of March 6, 1991,
wherein you saw the accused Tortillano Namayan
playing "hantak" and had a fistfight with a certain
"Bongoy" Sarita, have you ever seen this Tortillano
Namayan in some other dates in the month of
March, 1991?
A — Yes.
Q — In what occasion was that?
A — Fiesta of barangay Giligaon, March 19, 1991.
Q — Who was with Tortillano Namayan when you
saw him during the fiesta of Giligaon on March 19,
1991?
A — He was alone eating at my Lolo's house in the
kitchen.
Q — What time was that?
A — 11:30 o'clock in the morning.
Q — Did you ever know that this Tortillano
Namayan was a detention prisoner in the month of
March, 1991?
A — I heard that he is in prison because he has a
case by Mr. Rolando Namayan, but I don't know
why he was in Giligaon.9
Gaudencio Pagaygay:
Q — Do you know the accused in this case,
Tortillano Namayan?
A — I know.
Q — Why do you know him?
A — Because we are neighbors.
Q — Where?
A — At Giligaon, Siaton.
Q — How long have you known him before this
incident subject matter of this case on March 6,
1991?
A — I lived there for about twenty (20) years
already.
Q — You mean, you have known Tortillano
Namayan for twenty (20) years before the time of
the incident subject matter of this case?
A — Yes.
Q — If he is in the courtroom, please point to him?
A — He is there.
(Witness, Gaudencio Pagaygay pointing to a
person sitting on the bench intended for the
accused)
CLERK OF COURT: (Addressing to the person
being pointed to by the witness)
Q — What is your name?
A — Tortillano Namayan.
FISCAL VERGARA: (Continuation of her direct
examination of witness, Gaudencio Pagaygay)
Q — According to him in his defense, he was
detained on March, 1991, at the Siaton municipal
jail. Did you see him in Giligaon Siaton, Negros
Oriental, on March, 1991?
A — I saw him because there was a time while I
was sitting in my store, he approached me and
asked me to play with him "Mahjong".
Q — What date was that if you can remember?
A — That was March, 1991.
Q — And what time was that when he approached
you while you were sitting at your store?
 A — Around 5:00 o'clock in the afternoon.
Q — You testified that he asked you to play
"Mahjong" with him. Did you eventually play
"Mahjong" with him?
A — We played "Mahjong" at that time.
Q — Until what time was that?
A — We played only one (1) game because he had
no more money to pay. He did not pay me
anymore the bet.
Q — How much did he owe you?
A — P6.00.
Q — After March 9, 1991, did you see again
Tortillano Namayan the accused in this case?
A — I saw him dancing.
Q — Where?
A — Dance hall.
Q — Dancing hall of where?
A — Giligaon.
Q — When?
A — Fiesta.
Q — When was that fiesta of Giligaon?
A — March 19.
Q — What time did you see him at the dancing hall
of Giligaon, Siaton, on March 19, 1991?
A — About 10:00 o'clock past.10
This was unrebutted.
It is worth stressing, in this connection, that alibi is one of the weakest defenses that
can be resorted to by an accused, especially if there is direct testimony of an
eyewitness duly corroborated by that of another, not only because it is inherently weak
and unreliable but also because of the ease of fabricating evidence of alibi and the
difficulty of checking or rebutting it. People vs. Estrada, L-261003, January 17, 1968,
22 SCRA 111 was cited in support of such a view. Thus: "No jurisprudence in criminal
cases is more settled than the rule that alibi is the weakest of all defenses and that the
same should be rejected when the identity of the accused has been sufficiently and
positively established by eye witnesses to the crime." Such should be the rule, for as a
defense, alibi is easy to concoct. It is not enough to prove that defendant was
somewhere else, when the crime was committed, but he must, likewise, demonstrate
that it was physically impossible for him to have been at the scene of the crime at the
time of its commission.11
But appellant cautions that the testimony of complainant betrays the normal behavior
of a girl whose virtue was threatened. Having allegedly been raped several times,
dominated more by fear and ignorance, rather than by reason. In the same manner, it
is incredible to believe that she could have fabricated the charges against the accused.
The filing of the complaint was impelled by no other reason than to vindicate an offense
committed against the victim and her family. It is hard to believe that a rape victim and
her family would publicly disclose the incident and thus sully their honor and reputation
in the community unless it is true.12
While the evidence shows three acts of rape, there can be prosecution for only one,
because the information charges only one offense.13
In any event, whether under paragraph 1 or under paragraph 2 of Article 33514 of the
Revised Penal Code, appellant's guilt is demonstrated beyond reasonable doubt.
There is no question that the child then being conceived by the complainant resulted
from the act of sexual intercourse complained of. As correctly observed by the trial
court:
According to the Medical witness, Margie Pagaygay, at the time of
examination on July 30, 1991, was found to be pregnant with fetus
aging 4 to 5 months old. Based on this (sic) findings, the act or acts
of sexual intercourse might have happened during approximately the
period of between March 15, 1991 to April 15, 1991, a period of one
month before the start of the conception. Even assuming that the
accused was released from confinement in jail on April 12, 1991 as
contented (sic) by him, yet from April 15, 1991, to July 30, 1991,
would be approximately four (4) months after April 12, 1991. Time
computation here is not so exact as like any other mathematical
computation because coetus (sic) and pregnancy are mysterious
acts of nature which only the Great Creator knows with exactitude.
Added is the fact that on March 19, 1991, during the fiesta of
Barangay Giligaon, Municipality of Siaton, Province of Negros
Oriental, Lilian Gomez, a prosecution rebuttal witness saw the
accused Tortillano Namayan in the said place playing "jantac" a
game of chance played by means of tossing up coins. Besides, the
 alleged charge for which the accused Tortillano Namayan claims he
had been detained is not serious and only requires minimum security
risks if ever he was detained from February, 1991 to April 12, 1991.
Therefore, the oral rebuttal testimony furnished by Lilian Gomez for
the prosecution is credit worthy.15

Compulsory acknowledgment, as well as the support of the child is indeed proper there
being no legal impediment in doing so, as it appears that complainant and appellant
are both single. The crime of rape committed by the accused carries with it, among
others, the obligations to acknowledge the offspring if the character of its origin does
not prevent it and to support the same. 16

WHEREFORE, the judgment appealed from is hereby AFFIRMED, modified only as far
as the award of damages is concerned, which is increased to FORTY THOUSAND
PESOS (P40,000) in line with current jurisprudence.17

SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 111455 December 23, 1998
MARISSA A. MOSSESGELD, petitioner,
vs.
COURT OF APPEALS and CIVIL REGISTRAR GENERAL, respondents.
PARDO, J.:
The case is an appeal via certiorari under Rule 45 of the Revised Rules of Court from
the decision of the Court of Appeals. 1 affirming that of the Regional Trial Court, Pasig,
Branch 69, dismissing the petition of the putative father, later subtituted by the unwed
mother, to compel the local civil registrar of Mandaluyong, Metro Manila 2 to register
the certificate of live birth of petitioner's illegitimate child using the surname of
the presumed father.
On December 2, 1989, petitioner Marissa Alfaro Mossesgeld, single, 31 years of
age, gave birth to a baby boy at the Medical City General Hospital, Mandaluyong,
Metro Manila. 3 It was the third time that she delivered a child. 4 The presumed
father, one Eleazar Siriban Calasan, 42 years old, a lawyer, married, and a
resident of 8632 San Jose St. Guadalupe Nuevo, Makati, Metro Manila, signed the
birth certificate of the child as the informant, indicating therein the child's first
name as Jonathan, middle name as Mossesgeld, and last name as Calasan. Both
the presumed father, Eleazar S. Calasan and the mother Marissa A. Mossesgeld,
accomplished the dorsal side of the certificate of live birth stating that the
information contained therein were true and correct. In addition, lawyer Calasan
executed an affidavit admitting paternity of the child. 5
On December 6, 1989, due to the refusal of the person in charge at the hospital
to placing the presumed father's surname as the child's surname in the certificate
of live birth, petitioner himself submitted the certificate to the office of the local
civil registrar of Mandaluyong, for registration.
On December 28, 1989, the municipal treasurer of Mandaluyong, as officer in
charge of the office of the local civil registrar, rejected the registration on the
basis of Circular No. 4, dated October 11, 1988, of the Civil Registrar General,
providing that under Article 176 of the Family Code of the Philippines, illegitimate
children born on or after August 3, 1988, shall use the surname of their mother. 6
On October 9, 1990, lawyer Eleazar S. Calasan personally went to the Local Civil
Registrar of Mandaluyong to inquire about the status of the registration of his
illegitimate child's certificate of birth, but was furnished with a copy of the letter
dated January 17, 1990, of the Civil Registrar General denying registration of the
certificate of live birth of petitioner's illegitimate child using the father's surname,
for it is contrary to law. 7
On November 7, 1990, lawyer Eleazar S. Calasan filed with the Regional Trial
Court, Pasig, Branch 69, a petition for mandamus to compel the Local Civil
Registrar of Mandaluyong, Metro Manila, to register the certificate of live birth of
his alleged illegitimate son using his surname. 8
On October 29, 1991, the lower court denied the petition, ruling that illegitimate
children must use the surname of their mothers, regardless of whether or not
they had been acknowledged by their fathers in the record of birth. 9
On November 21, 1991, petitioner Calasan filed a motion for reconsideration of
the denial. In the meantime, on December 9, 1991, he filed a motion for leave to
amend petition andto admit amended petition, substituting the child's mother
Marissa A. Mossesgeld as the petitioner. 10
On February 11, 1992, the lower court granted the motion for leave to amend
petition. 11 However, on June 3, 1992, the lower court denied the motion for
reconsideration.
In due time, petitioner interposed an appeal to the Court of Appeals.
On July 23, 1993, the Court of Appeals rendered decision affirming the judgment
appealed from. 12
Hence, this petition.
The issue raised is whether mandamus lies to compel the Local Civil Registrar
to register a certificate of live birth of an illegitimate child using the alleged
father's surname where the latter admitted paternity .
We deny the petition.
Art. 176 of the Family Code of the Philippines 13 provides that "illegitimate
children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this Code." This is the
rule regardless of whether or not the father admits paternity. Consequently, the
Local Civil Registrar correctly refused to register the certificate of live birth of
petitioner's illegitimate child using the surname of the alleged father, even with
the latter's consent. Of course, the putative father, though a much married man,
may legally adopt his own illegitimate child. 14 In case of adoption, the child shall
be considered a legitimate child of the adopter, entitled to use his surname. 15
The Family Code has effectively repealed the provisions of Article 366 of the Civil
Code of the Philippines giving a natural child acknowledge by both parents the
right to use the surname of the father. The Family Code has limited the
classification of children to legitimate and illegitimate, 16 thereby eliminating the
category of acknowledged natural children and natural children by legal fiction. 17

Consequently, we rule that mandamus will not lie to compel the local civil
registrar to register the certificate of live birth of an illegitimate child using the
father's surname, even with the consent of the latter. Mandamus does not lie to
compel the performance of an act prohibited by law.

WHEREFORE, the Court DENIES the petition for review on certiorari. We AFFIRM
the decision of the Court of Appeals and that of the Regional Trial Court, Pasig,
Branch 69, dismissing the petition for mandamus in Special Civil Action No.
60146.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION
[G.R. No. 145527 : May 28, 2002
AUGUSTUS CAEZAR R. GAN, Petitioner, v. HON. ANTONIO C. REYES, in
his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT G.
TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and
FRANCHESKA JOY C. PONDEVIDA, assisted by BERNADETTE C.
PONDEVIDA, Respondents.
DECISION
BELLOSILLO, J.:
Quite apprehensive that she would not be able to send to school her three
(3)-year old daughter Francheska Joy S. Pondevida, Bernadette S.
Pondevida wrote petitioner Augustus Caezar R. Gan1 demanding support
for their "love child." Petitioner, in his reply, denied paternity of the child.
An exasperated Bernadette thereafter instituted in behalf of her daughter a
complaint against petitioner for support with prayer for support pendente
lite.2cräläwvirtualibräry
Petitioner moved to dismiss on the ground that the complaint failed to
state a cause of action. He argued that since Francheska's certificate of
birth indicated her father as "UNKNOWN," there was no legal or factual
basis for the claim of support.3 His motion, however, was denied by the
trial court.4cräläwvirtualibräry
Despite denial of his motion, petitioner failed to file his answer within the
reglementary period. Thus, on 19 January 2000 private respondent moved
that petitioner be declared in default, which motion was granted. In
its Order declaring petitioner in default the trial court noted that
petitioner's Motion to Admit Answer was filed more than ninety (90) days
after the expiration of the reglementary period, and only after private
respondent moved that petitioner be declared in default. Petitioner's
motion for reconsideration was also denied. Hence, the court received the
evidence of private respondent ex parte.
After finding that the claim of filiation and support was adequately proved,
the trial court rendered its Decision on 12 May 2000 ordering petitioner to
recognize private respondent Francheska Joy S. Pondevida as his
illegitimate child and support her with P20,000.00 every month to be paid
on or before the 15th of each month starting 15 April 2000. Likewise
petitioner was ordered to pay Francheska Joy S. Pondevida the
accumulated arrears of P20,000.00 per month from the day she was
born, P50,000.00 as attorney's fees and P25,000.00 for expenses of
litigation, plus P20,000.00 on or before the 15th of every month from 15
May 2000 as alimony pendente lite should he desire to pursue further
remedies against private respondent.5cräläwvirtualibräry
Forthwith, private respondent moved for execution of the judgment of
support, which the trial court granted by issuing a writ of execution, citing
as reason therefor private respondent's immediate need for
schooling.6 Pursuant to the writ, the sheriff levied upon a motor vehicle, a
Honda City, with Plate No. UMT 884, registered in the name of "A.B.
Leasing & Fin. Corp., Leased to: G & G Trading," and found within the
premises of petitioner's warehouse in Caloocan City.7cräläwvirtualibräry
Meanwhile, petitioner appealed the Judgment to the Court of
Appeals.8cräläwvirtualibräry
On 9 June 2000 petitioner filed a petition for certiorari and prohibition with
the Court of Appeals imputing grave abuse of discretion to the trial court
for ordering the immediate execution of the judgment. Petitioner averred
that the writ of execution was issued despite the absence of a good reason
for immediate enforcement. Petitioner insisted that as the judgment
sought to be executed did not yet attain finality there should be an
exceptional reason to warrant its execution. He further alleged that the
writ proceeded from an order of default and a judgment rendered by the
trial court in complete disregard of his "highly meritorious defense."
Finally, petitioner impugned the validity of the writ as he argued that it
was issued without notice to him. Petitioner stressed the fact that he
received copy of the motion for immediate execution two (2)
weeks after its scheduled hearing.9cräläwvirtualibräry
On 31 August 2000 the Court of Appeals dismissed the petition on the
ratiocination that under Sec. 4, Rule 39 of the 1997 Rules of Civil
Procedure judgments for support are immediately executory and cannot be
stayed by an appeal. Thus, it did not help petitioner any to argue that
there were no good reasons to support its immediate execution. The
second challenge hurled against the validity of the writ concerning the lack
of notice and hearing was likewise dismissed with the appeals court
favoring substantial justice over technicalities. Lastly, petitioner's
justification for belatedly filing his answer, i.e., miscommunication with his
lawyer, was disregarded since it fell short of the statutory requirements of
"fraud, accident, mistake or excusable negligence." 10cräläwvirtualibräry
His motion for reconsideration having been denied, petitioner came to us
impugning the dismissal of his petition for certiorari. Petitioner argues that
under the rules a judgment for support which is subject of an appeal
cannot be executed absent any good reason for its immediate execution.
Petitioner likewise attacks the validity of the writ asserting that it was
issued in violation of his right to notice and hearing. Petitioner also seeks
the setting aside of the default order and the judgment rendered
thereafter for the reason that should he be allowed to prove his defense of
adultery, the claim of support would be most likely denied.11 Petitioner
claims that in an action by a child against his putative father, adultery of
the child's mother would be a valid defense to show that the child is a fruit
of adulterous relations for, in such case, it would not be the child of the
defendant and therefore not entitled to support. Parenthetically, how could
he be allowed to prove the defense of adultery when it was not even
hinted that he was married to the mother of Francheska Joy. Petitioner
consents to submit to Dioxyribonucleic Acid (DNA) Testing to resolve the
issue of paternity, which test he claims has a reputation for
accuracy.12cräläwvirtualibräry
A careful review of the facts and circumstances of this case fails to
persuade this Court to brand the issuance of the writ of execution by the
trial court and affirmed by the Court of Appeals with the vice of grave
abuse of discretion. There is no evidence indeed to justify the setting aside
of the writ on the ground that it was issued beyond the legitimate bounds
of judicial discretion.
Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered
by the trial court, judgments in actions for support are immediately
executory and cannot be stayed by an appeal. This is an exception to the
general rule which provides that the taking of an appeal stays the
execution of the judgment and that advance executions will only be
allowed if there are urgent reasons therefor. The aforesaid provision
peremptorily calls for immediate execution of all judgments for support
and makes no distinction between those which are the subject of an appeal
and those which are not. To consider then petitioner's argument that there
should be good reasons for the advance execution of a judgment would
violate the clear and explicit language of the rule mandating immediate
execution.
Petitioner is reminded that to the plain words of a legal provision we
should make no further explanation. Absoluta sententia expositore non
indiget. Indeed, the interpretation which petitioner attempts to foist upon
us would only lead to absurdity, its acceptance negating the plain meaning
of the provision subject of the petition.
Petitioner would also have us annul the writ of execution on the ground
that he was not notified of its issuance. We are unable to accept such a
plea for enough has been done by petitioner to delay the execution of the
writ. As the records show, in partial fulfillment of the writ of execution
petitioner surrendered a sedan which apparently was not his as it was later
ordered released to a third party who laid claim over the levied
vehicle.13 Also, petitioner filed before the Court of Appeals a Motion for
Leave to Deposit in Court Support Pendente Lite promising to deposit the
amount due as support every 15th of the month, but to date has not
deposited any amount in complete disavowal of his undertaking.14 He was
not even deterred from appealing before us and needlessly taking up our
time and energy by posing legal questions that can be characterized, at
best, as flimsy and trivial. We are thus not prepared to abrogate the writ
of execution issued in favor of private respondent for substantial justice
would be better served if petitioner be precluded from interposing another
barrier to the immediate execution of the support judgment.
We are not intimating that in every case the right to notice of hearing can
be disregarded. That is not so. It appears in this case that there has been
too much temporizing in the execution of the writ which must not be
allowed to thwart the constitutional mandate for speedy disposition of
cases. As has been said, a technicality should be an aid to justice and not
its great hindrance and chief enemy.15 Truly, if the writ of execution would
be voided on this ground alone, then procedural rules which were primarily
drafted to protect parties in the realm of constitutional guarantees would
acquire a new sanctity at the expense of equity and justice.
Lastly, we note that no useful purpose would be served if we dwell on
petitioner's arguments concerning the validity of the judgment by default
and his insistence that he be subjected, together with private respondent
Bernadette C. Pondevida to DNA testing to settle the issue of paternity.
The futility of his arguments is very apparent. It is not for us at this
instance to review or revise the Decision rendered by the trial court for to
do so would pre-empt the decision which may be rendered by the Court of
Appeals in the main case for support.
In all cases involving a child, his interest and welfare are always the
paramount concerns. There may be instances where, in view of the
poverty of the child, it would be a travesty of justice to refuse him support
until the decision of the trial court attains finality while time continues to
slip away. An excerpt from the early case of De Leon v. Soriano16 is
relevant, thus:
The money and property adjudged for support and education should and
must be given presently and without delay because if it had to wait the
final judgment, the children may in the meantime have suffered because
of lack of food or have missed and lost years in school because of lack of
funds. One cannot delay the payment of such funds for support and
education for the reason that if paid long afterwards, however much the
accumulated amount, its payment cannot cure the evil and repair the
damage caused. The children with such belated payment for support and
education cannot act as gluttons and eat voraciously and unwisely,
afterwards, to make up for the years of hunger and starvation. Neither
may they enrol in several classes and schools and take up numerous
subjects all at once to make up for the years they missed in school, due to
non-payment of the funds when needed.

WHEREFORE, finding no reversible error in the Decision sought to be

reviewed, the instant petition is DENIED. The 31 August 2000 Decision of
the Court of Appeals dismissing the Petition for Certiorari instituted by
petitioner Augustus Caezar C. Gan and upholding the validity of the 2 June
2000 Writ of Execution issued by the Regional Trial Court Br. 61, Baguio
City, in Civil Case No. 4234-R, is AFFIRMED. Costs against petitioner.

SO ORDERED.

SECOND DIVISION
G.R. No. 122906 February 7, 2002
DINAH B. TONOG, petitioner,
vs.
COURT OF APPEALS and EDGAR V. DAGUIMOL, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari seeking the reversal of two (2) Resolutions
dated August 29, 1995 and November 29, 1995 issued by the former Second
Division1 of the Court of Appeals in CA-G.R. SP No. 35971. The first resolution modified
the appellate court’s decision promulgated in the said case, and granted custody of the
minor, Gardin Faith Belarde Tonog, to private respondent. The second resolution
denied petitioner’s motion for reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth2 to Gardin Faith Belarde
Tonog, her illegitimate daughter with private respondent Edgar V. Daguimol. Petitioner
was then a nursing student while private respondent was a licensed physician. They
cohabited for a time and lived with private respondent’s parents and sister in the latter’s
house in Quezon City where the infant, Gardin Faith, was a welcome addition to the
family.
A year after the birth of Gardin Faith, petitioner left for the United States of America
where she found work as a registered nurse. Gardin Faith was left in the care of her
father (private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over Gardin
Faith, docketed as Sp. Proc. No. Q-92-11053, in the Regional Trial Court of Quezon
City. On March 9, 1992, the trial court rendered judgment appointing private respondent
as legal guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in Sp. Proc.
No. Q-92-11053 only on April 1, 1992. Accordingly, on May 27, 1992, she filed a petition
for relief from judgment. In a resolution dated September 15, 1992, the trial court set
aside its original judgment and allowed petitioner to file her opposition to private
respondent’s petition. The latter, in turn, filed a motion for reconsideration. In a related
incident, petitioner filed on October 4, 1993, a motion to remand custody of Gardin Faith
to her.
On November 18, 1994, the trial court issued a resolution denying private respondent’s
motion for reconsideration and granting petitioner’s motion for custody of their child,
Gardin. Petitioner moved for immediate execution of the said resolution.
Due to the adverse turn of events, private respondent filed a petition for certiorari before
the Court of Appeals, docketed as CA-G.R. SP No. 35971, questioning the actuations
of the trial court. On March 21, 1995, the appellate court dismissed the petition on the
ground of lack of merit. However, after private respondent filed a motion for
reconsideration, the appellate court issued a Resolution3 dated August 29, 1995
modifying its decision, as follows:
Although We do find the Petition dismissible, insofar as it assails the September 15,
1993 Resolution of the respondent Court, giving due course to private respondent’s
Petition for Relief from Judgment, and the November 18, 1995 Resolution denying his
Motion for Reconsideration, We discern a good ground to let physical custody of subject
child, Gardin Faith Belarde Tonog, continue under the petitioner, with whom the said
child had been living, since birth.
While it is understandable for private respondent, as mother, to assert and seek
enforcement of her legal and natural rights as the natural guardian of her child, the
emotional and psychological effects upon the latter of a change in custody should be
considered. To be sure, transfer of custody of the child from petitioner to private
respondent will be painful for the child who, all her life, has been in the company of
petitioner and her paternal grandparents.
Now, inasmuch as the issue of guardianship and custody over the same child is still
pending determination before the respondent Court, the possibility of petitioner’s
appointment as the guardian cannot be discounted. It would certainly wreak havoc on
the child’s psychological make-up to give her to the custody of private respondent, only
to return her to petitioner should the latter prevail in the main case. Subjecting the child
to emotional seesaw should be avoided. It is thus more prudent to let physical custody
of the child in question be with petitioner until the matter of her custody shall have been
determined by final judgment.
WHEREFORE, the Decision, promulgated here on March 21, 1995 is accordingly
MODIFIED, and status quo with respect to the physical custody of the child, Gardin
Faith Belarde Tonog, is ordered. It is understood that the latter shall remain with
petitioner until otherwise adjudged.
Petitioner thus interposed the instant appeal after the appellate court denied her motion
for reconsideration in its Resolution4 dated November 29, 1995.
Petitioner contends that she is entitled to the custody of the minor, Gardin Faith, as a
matter of law. First, as the mother of Gardin Faith, the law confers parental authority
upon her as the mother of the illegitimate minor. Second, Gardin Faith cannot be
separated from her since she had not, as of then, attained the age of seven. Employing
simple arithmetic however, it appears that Gardin Faith is now twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-
being of the child.5 In arriving at its decision as to whom custody of the minor should be
given, the court must take into account the respective resources and social and moral
situations of the contending parents.6
In turn, the parents’ right to custody over their children is enshrined in law. Article 220
of the Family Code thus provides that parents and individuals exercising parental
authority over their unemancipated children are entitled, among other rights, "to keep
them in their company." In legal contemplation, the true nature of the parent-child
relationship encompasses much more than the implication of ascendancy of one and
obedience by the other. We explained this in Santos, Sr. v. Court of Appeals: 7
The right of custody accorded to parents springs from the exercise of parental authority.
Parental authority or patria potestas in Roman Law is the juridical institution whereby
parents rightfully assume control and protection of their unemancipated children to the
extent required by the latter’s needs. It is a mass of rights and obligations which the law
grants to parents for the purpose of the children’s physical preservation and
development, as well as the cultivation of their intellect and the education of their heart
and senses. As regards parental authority, "there is no power, but a task; no complex
of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the
minor."
Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental authority,
being purely personal, the law allows a waiver of parental authority only in cases of
adoption, guardianship and surrender to a children’s home or an orphan institution.
When a parent entrusts the custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody and it does not
constitute a renunciation of parental authority. Even if a definite renunciation is
manifest, the law still disallows the same.
Statute sets certain rules to assist the court in making an informed
decision.1âwphi1 Insofar as illegitimate children are concerned, Article 176 of the
Family Code provides that illegitimate children shall be under the parental authority of
their mother. Likewise, Article 213 of the Family Code provides that "[n]o child under
seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise." It will be observed that in both provisions, a
strong bias is created in favor of the mother. This is specially evident in Article 213
where it may be said that the law presumes that the mother is the best custodian. As
explained by the Code Commission:
The general rule is recommended in order to avoid many a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a mother
who is deprived of her child of tender age. The exception allowed by the rule has to be
for "compelling reasons" for the good of the child; those cases must indeed be rare, if
the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be
sufficient punishment for her. Moreover, moral dereliction will not have any effect upon
the baby who is as yet unable to understand her situation. 8
This is not intended, however, to denigrate the important role fathers play in the
upbringing of their children. Indeed, we have recognized that both parents "complement
each other in giving nurture and providing that holistic care which takes into account
the physical, emotional, psychological, mental, social and spiritual needs of the
child."9 Neither does the law nor jurisprudence intend to downplay a father’s sense of
loss when he is separated from his child:
While the bonds between a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony and pain if deprived of
custody. One cannot say that his or her suffering is greater than that of the other parent.
It is not so much the suffering, pride, and other feelings of either parent but the welfare
of the child which is the paramount consideration.10
For these reasons, even a mother may be deprived of the custody of her child who is
below seven years of age for "compelling reasons." Instances of unsuitability are
neglect, abandonment, unemployment and immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity, and affliction with a communicable
illness.11 If older than seven years of age, a child is allowed to state his preference, but
the court is not bound by that choice. The court may exercise its discretion by
disregarding the child’s preference should the parent chosen be found to be unfit, in
which instance, custody may be given to the other parent, or even to a third person. 12
In the case at bar, we are being asked to rule on the temporary custody of the minor,
Gardin Faith, since it appears that the proceedings for guardianship before the trial
court have not been terminated, and no pronouncement has been made as to who
should have final custody of the minor. Bearing in mind that the welfare of the said
minor as the controlling factor, we find that the appellate court did not err in allowing
her father (private respondent herein) to retain in the meantime parental custody over
her. Meanwhile, the child should not be wrenched from her familiar surroundings, and
thrust into a strange environment away from the people and places to which she had
apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be
properly entertained in the special proceedings before the trial court. 13 It should be
recalled that in a petition for review on certiorari, we rule only on questions of law. We
are not in the best position to assess the parties’ respective merits vis-à-vis their
opposing claims for custody. Yet another sound reason is that inasmuch as the age of
the minor, Gardin Faith, has now exceeded the statutory bar of seven years, a fortiori,
her preference and opinion must first be sought in the choice of which parent should
have the custody over her person.
A word of caution: our pronouncement here should not be interpreted to imply a
preference toward the father (herein private respondent) relative to the final custody of
the minor, Gardin Faith. Nor should it be taken to mean as a
statement against petitioner’s fitness to have final custody of her said minor daughter.
It shall be only understood that, for the present and until finally adjudged, temporary
custody of the subject minor should remain with her father, the private respondent
herein pending final judgment of the trial court in Sp. Proc. No. Q-92-11053.

WHEREFORE, the instant petition is hereby DENIED. The trial court is directed to
immediately proceed with hearing Sp. Proc. No. Q-92-11053 upon notice of this
decision. No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.

Quisumbing, J., abroad, on official leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-40958 August 11, 1934
Intestate estate of the deceased Antonio Escobar.
THE BANK OF THE PHILIPPINE ISLANDS, administrator.
ESTATE OF THE DECEASED LUCIANA DE LOS SANTOS, represented by the
executor JOSE SANTOS, claimant-appellee,
vs.
MARIA LUCIANO, claimant-appellant.
Ramon Diokno for appellant.
Reyes & Reyes and Jose Rivera Yap for appellee.
VILLA-REAL, J.:
This is an appeal taken by the claimant Maria Luciano from the order of the Court of
First Instance of Manila, the dispositive part of which reads as follows:
Wherefore, the court declares that the only heir of the deceased Antonio Escobar was
his wife Luciana de los Santos, now deceased, whom her heirs succeeded and whose
testamentary proceedings are likewise pending in this court, as above stated, and that
neither Maria Luciano nor Petrona Esguerra is entitled to participate in the estate of the
deceased Antonio Escobar.
After this judgment becomes final, the entire estate of the deceased Antonio
Escobar shall, by operation of law, pass to the testamentary estate of the
deceased Luciana de los Santos. Let a copy of this resolution be attached to
the record of the testamentary proceedings of the deceased Luciana de los
Santos, civil case No. 43599. So ordered.
In support of her appeal, the appellant assigns the following sole alleged error as
committed by the court a quo in its order to wit:
The lower court erred in not recognizing and declaring Maria Luciano as the
sole legal heir of the deceased Antonio Escobar and therefore entitled to the
entire intestate estate of the latter.
The following facts proven at the trial, some by stipulation of the parties and others by
a preponderance of the evidence, are necessary and pertinent to the resolution of the
questions raised in this appeal, to wit:
On January 1, 1837, a girl four days old, alleged to be a natural daughter of Leon
Escobar and Josefa Esguerra, was baptized in the Ermita church and given the name
of Tomasa Escobar (Exhibit 1-Maria Luciano).
Leon Escobar and Josefa Esguerra were married on August 2, 1838 (Exhibit 1), and
subsequently had legitimate children named Antonio and Fortunate Escobar. With said
spouses and their two legitimate children lived Tomasa, Guia and Nicolas Escobar. All
of them called said spouses "tatay" (father) and "nanay" (mother), respectively. Tomasa
was called by the other children "manang" (a term accorded in certain regions to the
elder sister). Tomasa Escobar grew up and lived under the care of the spouses Leon
and Josefa Escobar until she married. Said spouses supported her, treated and
presented her as their daughter, and she was publicly known as such. When Tomasa
Escobar became a widow, she went back to live with said spouses, together with her
only daughter, the herein claimant-appellant Maria Luciano who was born on December
17, 1864 (Exhibit 4). Leon Escobar built a house for Tomasa Escobar and her daughter
and the two lived there. Leon Escobar visited them in said house almost every day and
sent his sons Antonio and Fortunato to keep them company at night. Upon Tomasa
Escobar's death, Leon Escobar took said Maria Luciano into his home until she married
and was taken by her husband to the province. Leon Escobar died on February 12,
1887 (Exhibit 2-Luciana de los Santos). When Fortunato Escobar became ill, his
brother Antonio Escobar asked Maria Luciano to come to Manila to nurse him, sending
her money for passage. Upon Fortunato Escobar's death, Antonio Escobar took Maria
Luciano into his home where she lived Antonio's death.
The claimant-appellant Maria Luciano claims to be the legitimate niece of the deceased
Antonio Escobar, alleging that she is the legitimate daughter of Tomasa Escobar, a
legitimated sister of said deceased Antonio Escobar by the subsequent marriage of
their parents, and therefore the only heir to the estate of her said uncle.
First of all, it is necessary to determine whether or not Tomasa Escobar was a natural
daughter of the spouses Leon Escobar and Josefa Esguerra, legitimated by
subsequent marriage of the latter.
We have seen that Tomasa Escobar was born on December 29, 1836, and her alleged
parents Leon Escobar and Josefa Esguerra were married on August 2, 1838, that is
under the prior legislation which is Law I, Title XIII, Partida IV. Her status as a
legitimated daughter should therefore be determined by said law which reads as
follows:
Law I, Title XIII, Partida IV.—Moreover, the children which a man has by a
woman whom he keeps as a concubine will be legitimate, if he marries her
afterwards; for although children of this kind are not legitimate when they are
born, marriage has such force that, as soon as the father and mother are
married, the children become for that reason, legitimate. This same rule
applies where a man has a child by his female slave and afterwards marries
her; for marriage has such extraordinary power that, as soon as this is done,
the mother becomes free, and the children legitimate, for this reason.
It is a well-established doctrine, both in Spain and in the Philippines, interpreting Law
11 of Toro, that a child is considered natural when at the time of its conception or birth
its parents could have married without dispensation and when the father has expressly
or tacitly acknowledged it. (Mijares vs. Nery, 3 Phil., 195; Llorente vs. Rodriguez, 3
Phil., 697, Capistrano vs. Estate of Gabino, 8 Phil., 135; De Gala vs. De Gala, 42 Phil.,
771; Larena and Larena vs. Rubio, 43 Phil., 10117; Donado vs. Mendez Donado, 55
Phil., 861.)
The fact that before and after their marriage the spouses Leon Escobar and Josefa
Esguerra had Tomasa Escobar with them and their legitimate children; the fact that
they supported her, took care of her, and treated and presented her to society as their
daughter, and the fact that they built a house for her and her daughter, all show that
said spouses Leon Escobar and Josefa Esguerra acknowledged her as their daughter.
Pursuant to the provisions of Law 11 of Toro, cited above, such acknowledgment, in
addition to the freedom of her parents to marry without dispensation at the time of her
conception or birth, gave Tomasa Escobar the status of a natural child of Leon Escobar
and Josefa Esguerra (Requejo vs. Rabalo, 34 Phil., 14), and according to Law I, title
XIII, Partida IV, quoted above, the subsequent marriage of the latter legitimated her.
(Cosio vs. Pili, 10 Phil., 72; Requejo vs. Rabalo, supra.)
The question now arises whether or not the claimant-appellant Maria Luciano, as
legitimate daughter, born under the prior legislation, of Tomasa Escobar, a child
legitimated by subsequent marriage, is entitled to inherit from the intestate estate of a
brother of her mother who is a legitimate son of said Tomasa Escobar's parents, and
who died on July 21, 1932, under the present law.
The twelfth transitory provision of the Civil Code reads as follows:
12. Rights to the inheritance of a person who may have died, with or without
a will, before this Code was in force, shall be governed by the prior legislation.
The inheritance of those who died after that time, with or without a will, shall
be allotted and divided in accordance with this Code, but in harmony, in so far
as the latter permits it, with the testamentary dispositions. Therefore the
legitimes, betterments, and legacies shall be respected; but their other
manner to give to each participant in the inheritance the share pertaining to
him, according to this Code.
According to the above quoted transitory provision, inasmuch as Antonio Escobar died
after the Civil Code took effect, his inheritance should be allotted and divided in
accordance with said Code.
Article 953 of the Civil Code provides that should children of brothers or sisters exist,
the surviving spouse shall, concurrently with said children, be entitled to receive the
part of the inheritance in usufruct assigned him or her in article 837, that is, one-half of
the estate in usufruct. When Antonio Escobar died intestate on July 21, 1932, his niece,
the herein claimant-appellant Maria Luciano, daughter of his sister legitimated by
subsequent marriage of their parents, was entitled to inherit the full ownership of the
other half, the usufruct of which belonged to the surviving spouse. However, the
usufructuary right of the widow Luciana delos Santos was extinguished upon her death
which took place on December 27, 1932 (article 513 of the Civil Code), thereby
consolidating the naked ownership with the usfruct of the other half in the herein
claimant-appellant Maria Luciano.
The court a quo, in rejecting the claim of the claimant-appellant Maria Luciano to the
estate of her uncle Antonio Escobar, based its opinion on article 943 of the Civil Code
which provides that "a natural the legitimate child had no right to succeed ab
intestate the legitimate children and relatives of the father or mother who has
acknowledged it; nor shall such children or relatives so inherit from the natural or
legitimated child," interpreting the word "legitimated" to mean a child legitimated by
royal concession as well as one legitimated by subsequent marriage. Such
interpretation could not have been the intention of the legislator, inasmuch as article
122 of said Code considers a child legitimated by subsequent marriage to be in party
with a legitimate child and grants the former the same rights as those of the latter, while
article 127 of the same Code grants a child legitimated by royal concession only those
rights conferred upon acknowledged natural children by article 134. If children
legitimate by subsequent marriage have the same rights as legitimate children, and
those legitimated by royal concession only have the same rights as acknowledge
natural children, the word "legitimated" employed in article 943 et seq. of Section III,
Chapter IV of Book Three of the Civil Code, alternately with the word "natural", with
reference to the heredity portion to which the child of one class or another is entitled,
refers only to a child legitimated by royal concession and not to one legitimated by
subsequent marriage. Therefore, the provisions of the above cited article 943 of the
Civil Code are not applicable to the herein claimant-appellant Maria Luciano, and the
provisions of article 953 of the same Code are the ones applicable to her.
In view of the foregoing considerations, we are of the opinion and so hold: (1) That the
continuous possession of the status of a natural child, justified by direct acts of its
parents and their family under the legislation prior to the Civil Code, constitutes tacit
recognition of paternity (Law 11 of Toro); (2) that a child, who has enjoyed the
continuous possession of the status of natural child, justified by direct acts of its parents
and their family both before and after their marriage which was celebrated under the
prior legislation, is considered as legitimated by subsequent marriage (Law I, Title XIII,
Partida IV); (3) that the legitimate daughter of a daughter legitimated by subsequent
marriage, now deceased, is entitled to inherit from a brother of her mother who is a
legitimate son of the same parents who legitimated her mother by subsequent
marriage, and who died after the Civil Code took effect; and (4) that the word
"legitimated" employed in Section III, Chapter IV of Book Three of the Civil Code, refers
to children legitimated by royal concession and not to those legitimated by subsequent
marriage.
Wherefore, the order appealed from is reversed and the claimant-appellant Maria
Luciano is declared to be the sole heir to the intestate estate of Antonio Escobar, with
the costs against the appellee. So ordered.
Malcolm, Imperial, Butte and Goddard, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11796 August 5, 1918
In the matter of estate of Samuel Bischoff Werthmuller. ANA M.
RAMIREZ, executrix-appellant,
vs.
OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen Maria
Mory, and Leontina Elizabeth, claimant-appellant.
C. Lozano for executrix-appellant.
Thos. D. Aitken for claimant-appellant.
STREET, J.:
Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for many years
a resident of the Philippine Islands, died in the city of Iloilo on June 29, 1913, leaving a
valuable estate of which he disposed by will. A few days after his demise the will was
offered for probate in the Court of First Instance of Iloilo and, upon publication of notice,
was duly allowed and established by the court. His widow, Doña Ana M. Ramirez, was
named as executrix in the will, and to her accordingly letters testamentary were issued.
By the will everything was given to the widow, with the exception of a piece of real
property located in the City of Thun, Switzerland, which was devised to the testator's
brothers and sisters.
The first cause of the will contains a statement to the effect that inasmuch as the testator
had no children from his marriage with Ana M. Ramirez he was therefore devoid of
forced heirs. In making this statement the testator ignored the possible claims of two
sets of children, born to his natural daughter, Leona Castro.
The pertinent biographical facts concerning Leona Castro are these: As appears from
the original baptismal entry made in the church record of Bacolod, she was born in
that pueblo on April 11, 1875, her mother being Felisa Castro, and father "unknown."
Upon the margin of this record there is written in Spanish an additional annotation of
the following tenor: "According to a public document (escritura) which was exhibited,
she was recognized by Samuel Bischoff on June 22, 1877." This annotation as well as
the original entry is authenticated by the signature of Father Ferrero, whose deposition
was taken in this case. He testifies that the work "escritura" in this entry means a public
document; and he says that such document was exhibited to him when the marginal
note which has been quoted was added to the baptismal record and supplied the basis
for the annotation in question.
As the years passed Leona Castro was taken into the family of Samuel Bischoff and
brought up by him and his wife a a member of the family; and it is sufficiently shown by
the evidence adduced in this case that Samuel Bischoff tacitly recognized Leona a his
daughter and treated her as such. In the year 1895 Leona Castro was married to
Frederick von Kauffman, a British subject, born in Hong Kong, who had come to live in
the city of Iloilo. Three children were born of this marriage, namely, Elena, Federico,
and Ernesto, the youngest having been born on November 10, 1898. In the month of
April 1899, Leona Castro was taken by her husband from Iloilo to the City of Thun,
Switzerland, for the purpose of recuperating her health. She was there placed in a
sanitarium, and on August 20th the husband departed for the Philippine Islands, where
he arrived on October 10, 1899.
Leona Castro continued to remain in Switzerland, and a few years later informed her
husband, whom she had not seen again, that she desired to remain free and would not
resume life in common with him. As a consequence, in the year 1904, Mr. Kauffman
went to the City of Paris, France, for the purpose of obtaining a divorce from his wife
under the French laws; and there is submitted in evidence in this case a certified copy
of an extract from the minutes of the Court of First Instance of the Department of the
Seine, from which it appears that a divorce was there decreed on January 5, 1905, in
favor of Mr. Kauffman and against his wife, Leona, in default. Though the record recites
that Leona was then in fact residing at No. 6, Rue Donizetti, Paris, there is no evidence
that she had acquired a permanent domicile in that city.
The estrangement between the von Kauffman spouses is explained by the fact that
Leona Castro had become attracted to Dr. Ernest Emil Mory, the physician in charge
of the sanatorium in Switzerland where she was originally placed; and soon after the
decree of divorce was entered, as aforesaid, Doctor Mory and Leona Castro repaired
to the City of London, England, and on May 5, 1905, in the registrar's office in the district
of Westminster, went through the forms of a marriage ceremony before an officer duly
qualified to celebrate marriage under the English law. It appears that Doctor Mory
himself had been previously married to one Helena Wolpman, and had been divorced
from her; but how or under what circumstances this divorce had been obtained does
not appear.
Prior to the celebration of this ceremony of marriage a daughter, named Leontina
Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona Castro, in Thun,
Switzerland. On July 2, 1906, a second daughter, named Carmen Maria, was born to
them in Berne, Switzerland, now the place of their abode; and on June 10, 1909, a third
daughter was born, name Esther. On October 6, 1910, the mother died.
In the present proceedings Otto Gmur has appeared as the guardian of the three Mory
claimants, while Frederick von Kauffman has appeared as the guardian of his own three
children, Elena, Federico, and Ernesto.
As will be surmised from the foregoing statement, the claims of both sets of children
are founded upon the contention that Leona Castro was the recognized natural
daughter of Samuel Bischoff and that as such she would, if living, at the time of her
father's death, have been a forced heir of his estate and would have been entitled to
participate therein to the extend of a one-third interest. Ana M. Ramirez, as the widow
of Samuel Bischoff and residuary legatee under his will, insists — at least as against
the Mory claimants, — that Leona Castro had never been recognized at all by Samuel
Bischoff.
In behalf of Leontina, the oldest of the Mory claimants, it was originally insisted in the
court below, that, having been born while her mother still passed as the wife of
Frederick von Kauffman, she was to be considered as a legitimate daughter of the
wedded pair. This contention has been abandoned on this appeal a untenable; and it
is now contended here merely that, being originally the illegitimate daughter of Doctor
Mory and Leona Castro, she was legitimated by their subsequent marriage.
In behalf of Carmen Maria and Esther Renate, the two younger of the Mory claimants,
it is argued that the bonds of matrimony which united Frederick von Kauffman and
Leona Castro were dissolved by the decree of divorce granted by the Paris court on
January 5, 1905; that the marriage ceremony which was soon thereafter celebrated
between Doctor Mory and Leona in London was in all respects valid; and that therefore
these claimants are to be considered the legitimate offspring of their mother.
In behalf of the children of Frederick von Kauffman it is insisted that the decree of
divorce was wholly invalid, that all three of the Mory children are the offspring of
adulterous relations, and that the von Kauffman children, as the legitimate offspring of
Leona Castro, are alone entitled to participate in the division of such part of the estate
of Samuel Bischoff as would have been inherited by their mother, if living.
We are of the opinion that the status of Leona Castro as recognized natural daughter
of Samuel Bischoff is fully and satisfactorily shown. It is proved that prior to her marriage
with Frederick von Kauffman she was in an uninterrupted enjoyment of the de
facto status of a natural child and was treated as such by Samuel Bischoff and his
kindred. The proof of tacit recognition is full and complete.
From the memorandum made by Padre Ferrero in the record of the birth, as well as
from the testimony of this priest, taken upon the deposition, it also appears that Samuel
Bischoff had executed a document, authenticated by a notarial act, recognizing Leona
as his daughter, that said document was presented to the priest, as custodian of the
church records, and upon the faith of that document the marginal note was added to
the baptismal record, showing the fact of such recognition. The original document itself
was not produced in evidence but it is shown that diligent search was made to discover
its whereabouts, without avail. This was sufficient to justify the introduction of secondary
evidence concerning its contents; and the testimony of the priest show that the fact of
recognition was therein stated. Furthermore, the memorandum in the baptismal record
itself constitutes original and substantive proof of the facts therein recited.
It will be observed that the recognition of Leona Castro as the daughter of Samuel
Bischoff occurred prior to the date when the Civil Code was put in force in these Islands;
and consequently her rights as derived from the recognition must be determined under
the law as it then existed, that is, under Law 11 of Toro, which afterwards became Law
1, title 5, book 10, of the Novisima Recopilacion. (See Capistrano vs. Estate of Gabino,
8 Phil., 135, 139, where this statute is quoted in the opinion written by Mr. Justice
Torres.) Under that law recognition could be established by proof of acts on the part of
the parent unequivocally recognizing the status of his offspring. (Cosio vs. Pili, 10 Phil.,
72, 77.) In other words at tacit recognition was sufficient. Under article 131 of the
present Civil Code, the acknowledgment of a natural child must be made in the record
of birth, by will, or in other public instrument. We are of the opinion that the recognition
of Leona Castro is sufficiently shown whether the case be judged by the one provision
or the other.
But it is contended by counsel for Doña Ana Ramirez that only children born of persons
free to marry may possess the status of recognized natural children, and there is no
evidence to show that Felisa Catro was either a single woman or widow at the time of
the conception or birth of Leona. In the absence of proof to the contrary, however, it
must be presumed that she was a single woman or a widow.
Relative to this presumption of the capacity of the parents to marry, the author Sanchez
Roman makes the following comment:
Furthermore, viewing the conception of natural child in connection with two
mutually interrelated circumstances, to wit, the freedom of the parents to
intermarry, with or without dispensation, at the time of the conception of the
offspring stigmatized as natural, the first of these, or freedom to marry, is a
point upon which there is, according to the jurisprudence of our former law,
whose spirit is maintained in the Code, an affirmative presumption which
places the burden of proving the contrary upon those who are interested in
impugning the natural filiation. (Vol. 5, Derecho Civil, pp. 1018-1019.)
The contrary presumption would be that Felisa Castro was guilty of adultery, which
cannot be entertained. If such had in fact been the case, the burden of proving it would
have been upon the persons impugning the recognition of the child by her father. (Sec.
334, par. 1, Code of Civil Procedure.)
From the fact that Leona Castro was an acknowledged natural daughter of her father,
it follows that had she survived him she would have been his forced heir, he having
died after the Civil Code took effect. (Civil Code, article 807 [3], art. 939; Civil Code,
first transitory disposition); and as such forced heir she would have been entitled to
one-third of the inheritance (art. 842, Civil Code).
With reference to the right of the von Kauffman children, it is enough to say that they
are legitimate children, born to their parents in lawful wedlock; and they are therefore
entitled to participate in the inheritance which would have devolved upon their mother,
if he had survived the testator.
As regards the Mory claimants, it is evident that their rights principally depend upon the
effect to be given by this court to the decree of divorce granted to von Kauffman by the
Court of First Instance of the City of Paris. If this decree is valid, the subsequent
marriage of Doctor Mory and Leona Castro must also be conceded to be valid; and as
a consequence the two younger children, born after said marriage, would be the
legitimate offspring of their mother, and would be entitle to participate in their mother's
portion of Mr. Bischoff's estate. With respect to Leontina Elizabeth, the older one of the
Mory claimants, there would in the case still be the insuperable obstacle which results
from the fact that she was the offspring of adulterous intercourse and a such was
incapable of legitimation (art. 119, Civil Code).
We are of the opinion that the decree of divorce upon which reliance is placed by the
representation of the Mory children cannot be recognized as valid in the courts of the
Philippine Islands. The French tribunal has no jurisdiction to entertain an action for the
dissolution of a marriage contracted in these Islands by person domiciled here, such
marriage being indissoluble under the laws then prevailing in this country.
The evidence shows conclusively that Frederick von Kauffman at all times since earliest
youth has been, and is now, domiciled in the city of Iloilo in the Philippine Islands; that
he there married Leona Castro, who was a citizen of the Philippine Islands, and that
Iloilo was their matrimonial domicile; that his departure from iloilo for the purpose of
taking his wife to Switzerland was limited to that purpose alone, without any intent to
establish a domicile elsewhere; and finally that he went to Paris in 1904, for the sole
purpose of getting a divorce, without any intention of establishing a permanent
residence in that city. The evidence shows that the decree was entered against the
defendant in default, for failure to answer, and there is nothing to show that she had
acquired, or had attempted to acquire, a permanent domicile in the City of Paris. It is
evident of course that the presence of both the spouses in that city was due merely to
the mutual desire to procure a divorce from each other.
It is established by the great weight of authority that the court of a country in which
neither of the spouses is domiciled and to which one or both of them may resort merely
for the purpose of obtaining a divorce has no jurisdiction to determine their matrimonial
status; and a divorce granted by such a court is not entitled to recognition elsewhere.
(See Note to Succession of Benton, 59 L. R. A., 143.) The voluntary appearance of the
defendant before such a tribunal does not invest the court with jurisdiction.
(Andrews vs. Andrews, 188 U. S., 14; 47 L. ed., 366.)
It follows that, to give a court jurisdiction on the ground of the plaintiff's residence in the
State or country of the judicial forum, his residence must be bona fide. If a spouse
leaves the family domicile and goes to another State for the sole purpose of obtaining
a divorce, and with no intention of remaining, his residence there is not sufficient to
confer jurisdiction on the courts of that State. This is especially true where the cause of
divorce is one not recognized by the laws of the State of his own domicile. (14 Cyc.,
817, 818.)
As have been well said by the Supreme Court of the United States marriage is an
institution in the maintenance of which in its purity the public is deeply interested, for it
is the foundation of the family and of society, without which there could be neither
civilization nor progress. (Maynard vs. Hill, 125 U. S., 210; 31 L. ed., 659.) Until the
adoption of Act No. 2710 by the Philippine Legislature (March 11, 1917), it had been
the law of these Islands that marriage, validly contracted, could not be dissolved
absolutely except by the death of one of the parties; and such was the law in this
jurisdiction at the time when the divorce in question was procured. The Act to which we
have referred permits an absolute divorce to be granted where the wife has been guilty
of adultery or the husband of concubinage. The enactment of this statute undoubtedly
reflect a change in the policy of our laws upon the subject of divorce, the exact effect
and bearing of which need not be here discussed. But inasmuch as the tenets of the
Catholic Church absolutely deny the validity of marriages where one of the parties is
divorced, it is evident that the recognition of a divorce obtained under the conditions
revealed in this case would be as repugnant to the moral sensibilities of our people as
it is contrary to the well-established rules of law.
As the divorce granted by the French court must be ignored, it results that the marriage
of Doctor Mory and Leona Castro, celebrated in London in 1905, could not legalize their
relations; and the circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The claims of the Mory
children to participate in the estate of Samuel Bischoff must therefore be rejected. The
right to inherit is limited to legitimate, legitimated, and acknowledged natural children.
The children of adulterous relations are wholly excluded. The word "descendants," as
used in article 941 of the Civil Code cannot be interpreted to include illegitimates born
of adulterous relations.
An important question arises in connection with the time within which the claims of the
two sets of children were presented to the court. In this connection it appears that the
will of Samuel Bischoff was probated in August, 1913. A committee on claims was
appointed and it report was field and accepted February 20, 1914. About the same time
Otto Gmur entered an appearance for the Mory claimants and petitioned the court to
enter a decree establishing their right to participate in the distribution of the estate. The
executrix, Doña Ana Ramirez, answered the petition denying that said minors were the
legitimate children of Leona Castro and further denying that the latter was the
recognized natural daughter of Samuel Bischoff. Upon the issues thus presented a trial
was had before the Honorable Fermin Mariano, and on December 29, 1915, he
rendered a decision in which he held (1) that Leona Castro was the recognized natural
daughter of Samuel Bischoff; (2) that the minor, Leontina Elizabeth, is a legitimate
daughter of Leona Castro; and (3) that the minors Carmen Maria and Esther Renate
are illegitimate children of Leona Castro.
From these facts the court drew the conclusion that Leontina Elizabeth was entitled to
one-third of the estate of the late Samuel Bischoff, and that his widow, Doña Ana
Ramirez, was entitled to the remaining two-thirds. From this decision both Doña Ana
Ramirez and Otto Gmur, as guardian, appealed.
Shortly after the appeals above-mentioned were taken, Mr. Frederick von Kauffman
made application to the Court of First Instance of Iloilo by petition filed in the
proceedings therein pending upon the estate of the late Samuel Bischoff for
appointment as guardian ad litem of his minor children, the von Kauffman heirs, which
petition was granted by order dated March 4, 1916. Thereafter, on April 1, 1916, von
Kauffman, on behalf of the said minors, filed in the cause a petition setting forth their
right to share in the estate. This petition was answered by Mr. Otto Gmur, guardian, on
April 26, 1916, the sole contention of said answer being that the matter to which the
petition relates had been disposed of by the decision of the Court of First Instance
rendered in said proceedings by Judge Mariano on December 9, 1915. Doña Ana
Ramirez answered denying all the allegations of von Kauffman's petition.
The trial of the petition of von Kauffman, as guardian, came on for hearing before the
Court of First Instance of Iloilo on the 10th day of August, 1916. Upon the evidence
taken at that hearing the Honorable J. S. Powell, as judge then presiding in the Court
of First Instance of Iloilo, rendered a decision under date of November 14, 1916, in
which he found as a fact Leona Castro was the acknowledged natural daughter of
Samuel Bischoff and that the minors, Elena, Fritz, and Ernesto, are the legitimate
children of Frederick von Kauffman and the said Leona Castro, born in lawful wedlock.
Upon the facts so found, Judge Powell based his conclusion that all that portion of the
estate of Samuel Bischoff pertaining to Leona Castro should be equally divided among
the children Federico, Ernesto, and Elena, thereby excluding by inference the Mory
claimants from all participation in the estate.
From this judgments an appeal was taken by Mr. Otto Gmur as guardian, no appeal
having taken by Doña Ama Ramirez.
Though the circumstance is now of no practical importance, it may be stated in passing
that the appeals of Doña Ana Ramirez and of Otto Gmur, guardian, from the decision
of Judge Mariano of December 9, 1915, and the appeal of Otto Gmur, guardian from
the decision of Judge Powell, of November 14, 1916, were brought to this court
separately; but the causes were subsequently consolidated and have been heard
together. The parties to the litigation have also stipulated that all the "evidence,
stipulations and admissions in each of the two proceedings above-mentioned may be
considered for all purposes by this court in the other." The case is therefore considered
here as though there had been but one trial below and all the issues of law and fact
arising from the contentions of the oppossing claimants had been heard at the same
time.
Upon the facts above stated it is insisted for Ana M. Ramirez that her rights to the estate
under the will of Samuel Bischoff were at the latest determined by the final decree of
December 29, 1915; and that it was thereafter incompetent for the court to take
cognizance of the application of the Mory claimants. If this contention is sustainable,
the same considerations would operate to defeat the later application filed on behalf of
the von Kauffman children — and indeed with even greater force, — since this
application was not made until the appeals from the decree of December 9, 1915, had
actually been perfected and the cause had been transferred to the Supreme Court.
Two questions are here involved, one as to the effect of the probate of a will upon the
rights of forced heirs who do not appear to contest the probate, and the other as to the
conclusiveness and finality of an order for the distribution of an estate, as against
persons who are not before the court.
Upon the first of these questions it is enough to say that the rights of forced heirs to
their legitime are not divested by the decree admitting a will to probate, — and this
regardless of the fact that no provision has been made for them in the will, for the decree
of probate is conclusive only a regards the due execution of the will, the question of its
intrinsic validity not being determined by such decree. (Code of Civil Procedure, sec.
625; Castañeda vs. Alemany, 3 Phil., 426; Sahagun vs. De Gorostiza, 7 Phil., 347;
JocSoy vs. Vaño, 8 Phil., 119; Limjuco vs. Ganara, 11 Phil., 393, 395;
Austria vs. Ventenilla, 21 Phil., 180.)
Indeed it is evident, under the express terms of the proviso to section 753 of the Code
of Civil Procedure, that the forced heirs cannot be prejudiced by the failure of the
testator to provide for them in his will; and regardless of the intention of the testator to
leave all his property, or practically all of it, to his wife, the will is intrinsically invalid so
far a it would operate to cut off their rights.
The question as to the conclusiveness of the order of distribution can best be
considered with reference to the von Kauffman children, as the solution of the problem
as to them necessarily involves the disposition of the question as to the Mory claimants.
It is evident that the von Kauffman children cannot be considered to have been in any
sense parties to the proceeding at the time Judge Mariano rendered his decision. So
far a the record shows the court was then unaware even of their existence. No notice
of any kind was served upon them; nor was any person then before the court authorized
to act in their behalf. Nevertheless, as we have already shown, upon the death of
Samuel Bischoff, the right to participate in his estate vested immediately in this children,
to the extent to which their mother would have been entitled to participate had she
survived her father. If the right vested upon the death of Samuel Bischoff, how has it
been since divested?
The record shows that the decision of December 29, 1915, in which Judge Mariano
holds that the estate should be divided between Leontina Elizabeth and the residuary
legatee Doña Ana Ramirez, was made without publication of notice, or service of any
kind upon other persons who might consider themselves entitled to participate in the
estate.
The law in force in the Philippine Islands regarding the distribution of estates of
deceased persons is to be found in section 753 et seq., of the Code of Civil Procedure.
In general terms the law is that after the payment of the debts and expenses of
administration the court shall distribute the residue of the estate among the persons
who are entitled to receive it, whether by the terms of the will or by operation of law. It
will be noted that while the law (sec. 754) provides that the order of distribution may be
had upon the application of the executor or administrator, or of a person interested in
the estate, no provision is made for notice, by publication or otherwise, of such
application. The proceeding, therefore, is to all intents and purposes ex parte. A will be
seen our law is very vague and incomplete; and certainly it cannot be held that a
purely ex parte proceeding, had without notice by personal service or by publication,
by which the court undertakes to distribute the property of deceased persons, can be
conclusive upon minor heirs who are not represented therein.
Section 41 of the Code of Civil Procedure provides that ten years actual adverse
possession by "occupancy, grant, descent, or otherwise' shall vest title in the
possessor. This would indicate that a decree of distribution under which one may be
placed in possession of land acquired by descent, is not in itself conclusive, and that,
a held in Layre vs. Pasco (5 Rob. [La.], 9), the action of revindication may be brought
by the heir against the persons put in possession by decree of the probate court at any
time within the period allowed by the general statute of limitations.
Our conclusion is that the application of the von Kauffman children was presented in
ample time and that the judgment entered in their favor by Judge Powell was correct.
The Mory claimants, as already stated, are debarred from participation in the estate on
other grounds.
So much of the judgment entered in the Court of First Instance, pursuant to the decision
of Judge Mariano of December 29, 1915, as admits Leontina Elizabeth Mory to
participate in the estate of Samuel Bischoff is reversed; and instead the von Kauffman
children will be admitted to share equally in one-third of the estate as provided in the
decision of Judge Powell of November 14, 1916. In other respects the judgment of
Judge Mariano is affirmed. The costs of this instance will be paid out of the estate. So
ordered.

Arellano, C.J., Torres, Johnson, Malcolm and Avanceña, JJ., concur.