G.R. No.

L-2474; May 30, 1951

BAUTISTA ANGELO, J.:
 
DOCTRINE:
Children born after the one hundred and eighty days next
following that of the celebration of marriage or within the three
hundred days next following its dissolution or the separation of
the spouses shall be presumed to be legitimate.
This presumption may be rebutted only by proof that it was
physically impossible for the husband to have had access to his
wife during the first one hundred and twenty days of the three
hundred next preceding the birth of the child.
FACTS:
The defendant Eduvigis Macaraig filed a petition of certiorari to
the Supreme Court on the decision of the Court of First Instance
declaring Mariano Andal as the legitimate child of her son,
Emiliano Andal and approving the claim of the plaintiff on a
parcel of land owned by Emiliano through the donation of the
defendant.
Emiliano has an illness of tuberculosis and was living with his
wife Maria and his brother Felix. On Sept. 10, 1942, Emiliano’s
disease worsen and he become bedridden. The same day his wife
eloped with his brother. Accordingly, Felix and Maria had a
sexual relationship since May 1942 and treating each other as
husband and wife. Jan. 1, 1943, Emiliano died and Maria Dueñas
gave birth to a boy given the name Mariano Andal on June 17,
1943.
ISSUE:
Whether or not Mariano Andal is the legitimate child of the
deceased?
RULING:
Yes, Mariano Andal is the legitimate child of the deceased.
Children born after the one 
hundred and eighty days next following that of the celebration of
marriage or within the three hundred days next following its
dissolution or the separation of the spouses shall be presumed to
be legitimate. This presumption may be rebutted only by proof
that it was physically impossible for the husband to have had
access to his wife during the first one hundred and twenty days
of the three hundred next preceding the birth of the child. 
The boy was born on June 17, 1943, and Emiliano Andal died on
January 1, 1943, that boy is presumed to be the legitimate son of
Emiliano and his wife, he having been born within three hundred
(300) days following the dissolution of the marriage. This
presumption can only be rebutted by proof that it was physically
impossible for the husband to have had access to his wife during
the first 120 days of the 300 next preceding the birth of the
child. There is no evidence presented that Emiliano Andal was
absent during the period which is included in the 120 days of the
300 days preceding the birth of the child nor there is evidence
to show that Emiliano was suffering from impotency. The
presumption under the Civil Code in favor of the child was not
therefore been overcome.
Hence, Mariano Andal is the legitimate child of the deceased.