PATERNITY AND FILIATION A. Kinds of filiations. (Art. 163) Cases: Perido vs. Perido 63 SCRA 97 Liyao vs.

Liyao March 7, 2002 In re baby M, 109 N.J. 366, 537 A. 2d 1227 In re adoption of anoymous 345 N.Y.S 2d 430 B. Legitimate Children. (Art. 146) 1. Impugning legitimacy Cases: Andal vs. Macaraig 89 Phil 165 Jao vs. CA 152 SCRA 359 Macadangdang vs. CA 100 SCRA 73 Chua Keng Giap vs. TAC 166 SCRA 451 Cabatbat Lim v iac 166 scra 451 Tan v trocio 191 scra 764 Republic vs. Labrador 305 SCRA 438 People vs. Tumimpad 235 SCRA 483 Benitez-Badua vs. CA 299 SCRA 468 Lumain de Aparicho vs. Paraguay 150 SCRA 279 2. How to prove filiations Cases: Constantino vs. Mendez 209 SCRA 18 Lim v ca 65 scra 160 Mendoza vs. CA 201 SCRA 675 Heirs of R. Banas vs. Heirs of B. Banas 134 SCRA 260 Uyguanco vs. CA 178 SCRA 684 Mariategui vs. CA 205 SCRA 675 Acebedo vs. Arquero March 11, 2003 3. Action to claim legitimacy 4. Rights to legitimate children Cases: Republic vs. CA, Vicencio 300 SCRA 1998 De Asis vs. CA 303 SCRA 176 C. Illegitimate Children. 1. Proof of filiations (Art. 175) Cases: Leuterio vs. CA 197 SCRA 369 Uyguanco vs. CA 178 scra 684 Rodriguez v ca 245 scra 150 Aruego vs. Ca 254 SCRA 150 Jison vs. CA 286 SCRA 495 Alberto vs. CA 232 SCRA 745 2. Rights of illegitimate children RA 9255, amending Art. 176 RA 8972, Solo Parents Welfare Act Cases: David vs. CA 250 SCRA 82 People vs. Namaya 246 SCRA 646 Mossesgeld vs. CA 300 SCRA 464 Republic vs. Abadilla 302 SCRA 358 Republic vs. Vicencio 300 SCRA 138

Gan vs. Reyes May 28, 2002 Tonog vs. Ca Feb. 7, 2002 D. Legitimated Children. (Art. 177-182) Cases: De los Santos vs. Luciano 60 Phil 328 Ramirez vs. Gmur 42 Phil 855 XI. ADOPTION A. Domestic Adoption (RA 8552 and its IRR, Procedural Rules on Adoption, AM No. 02-6-02-SC) (RA 9523, An Act Requiring the Certification of the DSWD to Declare a Child Legally Available for Adoption as a Pre-requisite for Adoption Proceedings) 1. Policies (Sec. 2) Case: Republic vs. CA, Bobiles 205 SCRA 356 2. Definition of terms (Sec. 3) 3. Pre-adoption services (Sec. 4, 5, 6) 4. Eligibility a. Who may adopt (Sec. 7) b. Who may be adopted (Sec. c. Required consents (Sec. 9) Cases: In re Adoption of Edwin Villa 21 SCRA 399 Republic vs. Toledano and Spouses Clave 233 SCRA 9 Republic vs. Miller 306 SCRA 183 5. Procedures (Sec. 10, 11, 12, 15) Cases: Lazatin vs. Campos 92 SCAR 250 Santos vs. Aranzanso 16 SCRA 344 DSWD vs. Belen 275 SCRA 645 6. Decree of adoption (Sec. 13, 14) a. Effect on parental authority (Sec. 16) b. Legitimacy (Sec. 17) c. Succession (Sec.18) Cases: Tamargo vs. CA SCRA 518 Sayson vs. CA 205 SCRA 321 Republic vs. Wong 209 SCRA 189 Republic vs. Hernandez 253 SCRA 509 7. Rescission (Sec. 19, 20) 8. Violations and penalties (Sec. 21, 22) 9. Miscellaneous (Sec. 1, 23-28) B. Inter-Country Adoption RA 8043, Inter-Country Adoption Act of 1995 and its IRR Hague Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption XII. RIGHTS AND DUTIES OF PARENTS A. General Provisions (Art. 209-215) (See RA 8972 (Solo Parents Welfare Act) Cases: Dempsey vs. RTC 164 SCRA 384 Santos vs. CA 242 SCRA 407 Cang vs. CA 296 SCRA 128

David vs. CA 250 SCRA 82 Espiritu vs. CA 242 SCRA 362 (1995) Perez vs. CA 255 SCRA 661 (1996) B. Substitute and Special Parental Authority (Art. 216-219) Cases: Palisoc vs. Brillantes 41 SCRA 548 Amadora vs. CA 160 SCRA 315 St. Mary;s Academy vs. Carpitanos Jan. 23, 2000 Vancil vs. Belmes 358 SCRA 707 C. Effects of Parental Authority (Art. 220-226) Cases: Cabanas vs. Pilapil 58 SCRA 94 Libi vs. IAC 214 SCRA 816 Lindain vs. CA 212 SCRA 725 People vs. Silvano 309 SCRA 362 D. Suspension or Termination of Parental Authority (Art. 225-235) (See Sec. 5-10, 27-28, 31-c, RA 7610 Anti-Child Abuse Act) Case: Chua vs. Cabangbang 27 SCRA 791 Abiera vs. Orin 8 Phil 193 Cortes vs. Castillo 41 Phil 466 E. Summary Procedures (Art. 249-252) (See RA 8369 Family Courts Act of 1997) F. Rights of Parents Cases: Silva vs. CA and Gonzales 275 SCRA 604 London vs. BCC October 10, 2002 XIII. RIGHTS AND DUTIES OF CHILDREN Arts. 356-364, 375-376, CC Art. 129(a), 211, par. 2, 213, 226, FC Arts. 3 and 4, P.D. 603 FIRST DIVISION [G.R. No. 88202. December 14, 1998] REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and CYNTHIA VICENCIO, respondents. DECISION QUISUMBING, J.: This is an appeal interposed by the Republic of the Philippines as represented by the Office of the Solicitor General (OSG), assailing the decision[1] of the Court of Appeals promulgated on April 28, 1989, which affirmed the decision[2] of the Regional Trial Court of Manila, Branch 52, dated, August 31, 1987. The appealed decision granted private respondent Cynthia Vicencios petition for change of surname, from Vicencio to Yu. As found by the trial court, hereunder are the facts and circumstances of the case: Petitioners evidence is to the effect that she was born on 19 January 1971 at the Capitol Medical Center, Quezon City, to the spouses Pablo Castro Vicencio and Fe Esperanza de Vega

Leabres (Exh. C, also marked Annex A of Petition); that on 10 January 1972, after a marital spat, Pablo Vicencio left their conjugal abode then situated at Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared nor sent support to his family and it was Ernesto Yu who had come to the aid of Fe Esperanza Labres (sic) and her children; that on 29 June 1976, Fe Esperanza Leabres filed a petition in the then Juvenile and Domestic Relations Court of Manila for dissolution of their conjugal partnership, Civil Case No. E-02009, which was granted in a decision rendered by the Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs. D, D-1 to D3); that sometime in 1983, petitioners mother filed another petition for change of name, Sp. Proc. No. 83-16346, that is to drop the surname of her husband therefrom, and after hearing a decision was rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of this Court approving the petition (Exh. E); that in 1984, petitioners mother again filed another petition with this Court, Sp. Proc. No. 84-22605, for the declaration of Pablo Vicencio as an absentee, and which petition was granted on 26 April 1984 in a decision rendered by the Hon. Corona IbaySomera (Exh. F & F-1); that on 15 April 1986, petitioners mother and Ernesto Yu were joined in matrimony in a ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong, Metro Manila (Exh. G). It was also established that evern (sic) since her childhood, petitioner had not known much less remembered her real father Pablo Vicencio, and her known father had been and still is Ernesto Yu; that despite of which she had been using the family name Vicencio in her school and other related activities therein; that in view of such situation, confusion arose as to her parentage and she had been subjected to inquiries why she is using Vicencio as her family name, both by her classmates and their neighbors, causing her extreme embarrassment; that on two (2) occassions when she ran as a beauty contestant in a Lions Club affair and in a Manila Red Cross pageant, her name was entered as Cynthia L. Yu; that her step-father had been priorly consulted about this petition and had given his consent thereto; that in fact Ernesto Yu testified for petitioner and confirmed his consent to the petition as he had always treated petitioner as his own daughter ever since.[3] At the hearing of the petition for change of name by the trial court, the OSG manifested that it was opposing the petition. It participated in the proceedings by cross-examining the private respondent Cynthia Vicencio, (petitioner a quo) and her witnesses. Disregarding the OSGs contention, the trial court ruled that there is no valid cause for denying the petition. Further, the trial court stated that it could not compel private respondents stepfather to adopt her, as adoption is a voluntary act; but failure to resort to adoption should not be a cause for disallowing private respondent to legally change her name.[4] Hence, it granted the change of surname of private respondent from Vicencio to Yu. The decision of the trial court was affirmed by the appellate court, which held that it is for the best interest of petitioner that her surname be changed. The appellate court took into account the testimonies of private respondent and her witnesses that allowing the change of surname would give her an opportunity to improve her personality and welfare.[5] It likewise noted that the discrepancy between her original surname, taken from her biological father; and the surname of her step-father, who has been socially recognized as her father, caused her embarrassment and inferiority complex.[6]

The main issue before us is whether the appellate court erred in affirming the trial courts decision allowing the change of private respondents surname to that of her step-fathers surname. In Republic vs. Hernandez[7], we have recognized inter alia, the following as sufficient grounds to warrant a change of name: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change is a legal consequence of legitimation or adoption; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose, or that the change of name would prejudice public interest. Private respondent asserts that her case falls under one of the justifiable grounds aforecited. She says that confusion has arisen as to her parentage because ever since childhood, Ernesto Yu has acted as her father, assuming duties of rearing, caring and supporting her. Since she is known in society as the daughter of Ernesto Yu, she claims that she has been subjected to inquiries regarding her use of a different surname, causing her much humiliation and embarrassment. However, it is not denied that private respondent has used Vicencio as her surname in her school records and related documents. But she had used the surname of her step-father, Yu, when she participated in public functions, such as entering beauty contests, namely, with the Lions Club and the Manila Red Cross, and when she celebrated her debut at the Manila Hotel.[8] The Solicitor General however argues that there is no proper and reasonable cause to warrant private respondents change of surname. Such change might even cause confusion and give rise to legal complications due to the fact that private respondents step-father has two (2) children with her mother. In the event of her step-fathers death, it is possible that private respondent may even claim inheritance rights as a legitimate daughter. In his memorandum, the Solicitor General, opines that Ernesto Yu has no intention of making Cynthia as an heir because despite the suggestion made before the petition for change of name was heard by the trial court that the change of family name to Yu could very easily be achieved by adoption, he has not opted for such a remedy.[9] We find merit in the Solicitor Generals contention. The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought.[10] The assailed decision as affirmed by the appellate court does not persuade us to depart from the applicability of the general rule on the use of surnames[11], specifically the law which requires that legitimate children shall principally use the surname of their father[12]. Private respondent Cynthia Vicencio is the legitimate offspring of Fe Leabres and Pablo Vicencio. As previously stated, a legitimate child generally bears the surname of his or her father. It must be stressed that a change of name is a privilege, not a matter of right, addressed

to the sound discretion of the court, which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown.[13] Confusion indeed might arise with regard to private respondents parentage because of her surname. But even, more confusion with grave legal consequences could arise if we allow private respondent to bear her step-fathers surname, even if she is not legally adopted by him. While previous decisions have allowed children to bear the surname of their respective stepfathers even without the benefit of adoption, these instances should be distinguished from the present case. In Calderon vs. Republic,[14] and Llaneta vs. Agrava,[15] this Court allowed the concerned child to adopt the surname of the step-father, but unlike the situation in the present case where private respondent is a legitimate child, in those cases the children were not of legitimate parentage. In Moore vs. Republic,[16] where the circumstances appears to be similar to the present case before us, the Court upheld the Republics position: We find tenable this observation of governments counsel. Indeed, if a child born out of a lawful wedlock be allowed to bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of divorce, there may result a confusion as to his real paternity. In the long run the change may redound to the prejudice of the child in the community. While the purpose which may have animated petitioner is plausible and may run along the feeling of cordiality and spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier which we cannot at present overlook or brush aside.[17] Similarly in Padilla vs. Republic,[18] the Court ruled that: To allow said minors to adopt the surname of their mothers second husband, who is not their father, could result in confusion in their paternity. It could also create the suspicion that said minors, who were born during the coverture of their mother with her first husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into discredit.[19] Private respondent, might sincerely wish to be in a position similar to that of her step-fathers legitimate children, a plausible reason the petition for change of name was filed in the first place. Moreover, it is laudable that Ernesto Yu has treated Cynthia as his very own daughter, providing for all her needs as a father would his own flesh and blood. However, legal constraints lead us to reject private respondents desire to use her stepfathers surname. Further, there is no assurance the end result would not be even more detrimental to her person, for instead of bringing a stop to questions, the very change of name, if granted, could trigger much deeper inquiries regarding her parentage. Lastly, when this case was decided by the appellate court, private respondent was already 18 years old but still considered a minor because Republic Act 6809,[20] lowering the age of majority, was then in effect. However, regardless of private respondents age, our conclusion remains considering the circumstances before us and the lack of any legally justifiable cause for allowing the change of her surname.

WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE; and the instant petition is hereby GRANTED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 86302 September 24, 1991

CASIMIRO MENDOZA, petitioner, vs. HON. COURT OF APPEALS and TEOPISTA TORING TUACAO, respondents. Bienvenido R. Saniel, Jr. for petitioner. Domingo Antigua & Associates for private respondent.

CRUZ, J.:p The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza, but the latter denied her claim. He denied it to his dying day. The trial court believed him and dismissed her complaint for compulsory recognition. The appellate court did not and reversed the judgment of the court below. Now the issue is before us on certiorari. The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring Tufiacao, the herein private respondent, alleged that she was born on August 20, 1930, to Brigida Toring, who was then single, and defendant Casimiro Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a recognized illegitimate child. Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and set up a counterclaim for damages and attorney's fees. Amplifying on her complaint, Teopista testified that it was her mother who told her that her father was Casimiro. She called him Papa Miroy. She lived with her mother because Casimiro was married but she used to visit him at his house. When she married Valentin Tufiacao, Casimiro bought a passenger truck and engaged him to drive it so he could have a livelihood. Casimiro later sold the truck but gave the proceeds of the sale to her and her husband. In 1977, Casimiro allowed her son, Lolito Tufiacao, to build a house on his lot and later he gave her

money to buy her own lot from her brother, Vicente Toring. On February 14, 1977, Casimiro opened a joint savings account with her as a co-depositor at the Mandaue City branch of the Philippine Commercial and Industrial Bank. Two years later, Margarita Bate, Casimiro's adopted daughter, took the passbook from her, but Casimiro ordered it returned to her after admonishing Margarita. 1 Lolito Tufiacao corroborated his mother and said he considered Casimiro his grandfather because Teopista said so. He would kiss his hand whenever they saw each other and Casimiro would give him money. Casimiro used to invite him to his house and give him jackfruits. when his grandfather learned that he was living on a rented lot, the old man allowed him to build a house on the former's land. 2 Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both relatives of Casimiro. Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted as a go-between for their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro handed him P20.00 to be given to Brigida at Teopista's baptism. Casimiro also gave him P5.00 every so often to be delivered to Brigida. 3 Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various amounts from P2.00 to P10.00 to be delivered to Teopista. Isaac also declared that Casimiro intended to give certain properties to Teopista. 4 Casimiro himself did not testify because of his advanced age, but Vicente Toring took the stand to resist Teopista's claim. Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that Teopista's father was not Casimiro but a carpenter named Ondoy, who later abandoned her. Vicente said that it was he who sold a lot to Teopista, and for a low price because she was his half sister. It was also he who permitted Lolito to build a house on Casimiro's lot. This witness stressed that when Casimiro was hospitalized, Teopista never once visited her alleged father. 5 The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's niece, who also affirmed that Vicente Toring used to work as a cook in Casimiro's boat. She flatly declared she had never met Teopista but she knew her husband, who was a mechanic. 6 The rules on compulsory recognition are embodied in Article 283 of the Civil Code, which has been held to be applicable not only to natural children but also to spurious children. 7 The said article provides:

Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (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 of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father. (4) When the child has in his favor any evidence or proof that the defendant is his father.

This article has been substantially reproduced in the Family Code as follows: Art. 172. (1) The filiation of legitimate children is established by any of the following:

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) (2) The open and continuous possession of the status of a legitimate child; or 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. In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff' s claim that she was in continuous possession of the status of a child of the alleged father by the direct acts of the latter or of his family. His Honor declared: In this particular case the established evidence is that plaintiff continuously lived with her mother, together with her sister Paulina. Neither the plaintiff nor her husband had come to live with the defendant. At most, only their son, Lolito Tufiacao was allowed to construct a small house in the land of the defendant, either by the defendant himself, as claimed by the plaintiff, or by Vicente Toring, as claimed by the witnesses of the defendant. The defendant never spent for the support and education of the plaintiff. He did not allow the plaintiff to carry his surname. The instances when the defendant gave money to the plaintiff were, more or less, off-and-on or rather isolatedly periodic. They were made at considerable intervals and were not given directly to the plaintiff but through a third person. Thus, while it may be conceded that: a) the defendant's parents, as well as the plaintiff himself told Gaudencio Mendoza and Isaac Mendoza that

Teopista is the daughter of the defendant; b) that Teopista calls the defendant as "Papa Miroy"; c) that Teopista would kiss defendant's hand when she met him; d) that the defendant gave to her and her husband the income of the passenger truck as well as the proceeds of the sale thereof, all these acts, taken altogether, are not sufficient to show that the plaintiff had possessed continuously the status of a recognized illegitimate child. On appeal, however, the respondent courts 8 disagreed and arrived at its own conclusion as follows: Contrary to the conclusion of the court a quo, We find that appellant has sufficiently proven her continuous possession of such status. Although the court a quo did not pass on the credibility of the various witnesses presented, We consider the witnesses for the plaintiff as credible and unbiased. No proof was shown to render them otherwise. There is no showing that Isaac and Gaudencio testified falsely. They were disinterested parties with no axe to grind against the appellee or the people actively acting in his behalf. In fact even the court a quo conceded to the truthfulness of some of their testimonies. By contrast, it continued, Vicente Toring was an interested party who was claiming to be the sole recognized natural child of Casimiro and stood to lose much inheritance if Teopista's claim were recognized. He had earlier filed theft charges against his own sister and libel charges against her husband. As for Julieta Ouano, the respondent court found it difficult to believe that she had never met Teopista although both of them have been living in the same barangay since birth. The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for reconsideration was filed, and it was only from the opposition thereto of the private respondent that Casimiro's counsel learned that his client had died on May 1986. He immediately informed the respondent court build the motion for reconsideration was denied without any substitution of parties having been effected. The said counsel, now acting for Vicente Toring, then asked this Court to substitute the latter for the deceased Casimiro Mendoza in the present petition. The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3, reading as follows: Sec. 16. Duty of attorney upon death, incapacity or incompetency of party. Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and residence of his executor, guardian or other legal representative. Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be

allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs. In the early case of Masecampo vs. Masecampo, 9 it was settled that: The subsequent death of the father is not a bar to the action commenced during Ms lifetime by one who pretended to be his natural son. It may survive against the executor, administrator, or any other legal representative of the testate or intestate succession. Pursuant to the above rules and jurisprudence, we hereby allow the substitution of Casimiro Mendoza pro haec vice and nunc pro tunc by Vicente Toring, who appears to be the former's illegitimate son. This disposes of the private respondent's contention that the lawyer-client relationship terminated with Casimiro's death and that Vicente has no personality now to substitute him. Now to the merits. We note that both the trial court and the respondent court, in arriving at their respective conclusions, focused on the question of whether or not Teopista was in continuous possession of her claimed status of an illegitimate child of Casimiro Mendoza. This was understandable because Teopista herself had apparently based her claim on this particular ground as proof of filiation allowed under Article 283 of the Civil Code. To establish "the open and continuous possession of the status of an illegitimate child," it is necessary to comply with certain jurisprudential requirements. "Continuous" does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it continues. 10 The possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and without concealment though without publicity (since the relation is illegitimate). 11 There must be a showing of the permanent intention of the supposed father to consider the child as his own, by continuous and clear manifestation of paternal affection and care. 12 With these guidelines in mind, we agree with the trial court that Teopista has not been in continuous possession of the status of a recognized illegitimate child of Casimiro Mendoza, under both Article 283 of the Civil Code and Article 172 of the Family Code. The plaintiff lived with her mother and not with the defendant although they were both residents of Omapad, Mandaue City. It is true, as the respondent court observed, that this could have been because defendant had a legitimate wife. However, it is not unusual for a father to take his illegitimate child into his house to live with him and his legitimate wife, especially if the couple is childless, as in this case. In fact, Vicente Toring, who also claimed to be an illegitimate child of Casimiro, lived with the latter and his wife, apparently without objection from the latter. We also note that Teopista did not use the surname of Casimiro although this is, of course, not decisive of one's status. No less significantly, the regularity of defendant's act of giving money to the plaintiff through Gaudencio Mendoza and Isaac Mendoza has not been sufficiently established. The trial court correctly concluded that such instances were "off-and-on," not

continuous and intermittent. Indeed, the plaintiff s testimony on this point is tenuous as in one breath she said that her mother solely spent for her education and in another that Casimiro helped in supporting her. 13 But although Teopista has failed to show that she was in open and continuous possession of the status of an illegitimate child of Casimiro, we find that she has nevertheless established that status by another method. What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. 14 The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza, that Teopista was the daughter of the defendant." It should have probed this matter further in light of Rule 130, Section 39, of the Rules of Court, providing as follows: Sec. 39. Act or declarations about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set the record straight, we will stress that it was only Isaac Mendoza who testified on this question of pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter. 15 Such acts or declarations may be received in evidence as an exception to the hearsay rule because "it is the best the nature of the case admits and because greater evils are apprehended from the rejection of such proof than from its admission. 16 Nevertheless, precisely because of its nature as hearsay evidence, there are certain safeguards against its abuse. Commenting on this provision, Francisco enumerates the following requisites that have to be complied with before the act or declaration regarding pedigree may be admitted in evidence: 1. 2. The declarant is dead or unable to testify. The pedigree must be in issue.

3. 4.

The declarant must be a relative of the person whose pedigree is in issue. The declaration must be made before the controversy arose.

5. The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. 17 All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs. 18 The said declarations have not been refuted. Casimiro could have done this by deposition if he was too old and weak to testify at the trial of the case. If we consider the other circumstances narrated under oath by the private respondent and her witnesses, such as the financial doles made by Casimiro to Brigida Toring, the hiring of Teopista's husband to drive the passenger truck of Casimiro, who later sold the vehicle and gave the proceeds of the sale to Teopista and her husband, the permission he gave Lolito Tufiacao to build a house on his land after he found that the latter was living on a rented lot, and, no less remarkably, the joint savings account Casimiro opened with Teopista, we can reasonably conclude that Teopista was the illegitimate daughter of Casimiro Mendoza. We hold that by virtue of the above-discussed declarations, and in view of the other circumstances of this case, 'reopista Toring Tufiacao has proved that she is the illegitimate daughter of Casimiro Mendoza and is entitled to be recognized as such. In so holding, we give effect to the policy of the Civil Code and the Family Code to liberalize the rule on the investigation of "the paternity of illegitimate children, without prejudice to the right of the alleged parent to resist the claimed status with his own defenses, including evidence now obtainable through the facilities of modern medicine and technology WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING Teopista Toring Tuacao to be the illegitimate child of the late Casimiro Mendoza and entitled to all the rights appurtenant to such status. Costs against the petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-25715 January 3, 1985

HEIRS OF RAYMUNDO C. BAAS, namely, TRINIDAD VECINO VDA. DE BAAS, LUIS V. BAAS JOSE V. BAAS, CONRADO V. BAAS ESTER V. BAAS CELIA V. BAAS, and ANTONIO DE GUZMAN, plaintiffs-appellants vs. HEIRS OF BIBIANO BARAS, namely, FAUSTINA VECINO VDA. DE BAAS ANTONIO V. BAAS BIBIANO V. BAAS JR., ROSITA V. BAAS, ANGEL V. BAAS, MIGUEL DIVINO JACINTO DE DIOS and BAAS & SONS, INC., defendants-appellees.

MAKASIAR, J.: This is an appeal from the decision dated January 5, 1966 of the then Court of First Instance of Manila, Branch II, in Civil Case No. 59859, which dismiss plaintiffs-appellants' complaint for partition or recovery of hereditary share, fruits and damages. Plaintiffs-appellants, in their complaint filed no February 12, 1965, alleged that the late Raymundo Baas their predecess-or-in-interest, was the acknowledged natural son of the late Bibiano Baas defendants-appellees' predecessor- in-interest; that therefore, they are, by descent, entitled to a share in the estate of the late Bibiano Baas. Defendants-appellees, in answer to the complaint, denied that Raymundo Baas was the natural son of the late Bibiano Baas nor was he ever acknowledged by the latter and his family as such; and by way of special and/or affirmative defenses alleged that the use of the surname Baas by Raymundo was justified on an alleged kinship of Raymundo Baas with Pedro Baas brother of Bibiano Baas. The following antecedent facts culled from the records are not disputed, to wit: The late Raymundo Baas was a natural child being born out of wedlock on March 15, 1894, in Sampaloc, Manila, of Dolores Castillo and of an unknown father (p. 103, CFI rec.). During this time, Bibiano Baas was still single (pp. 38-39, CFI rec.). When Raymundo was of school age, he studied at the Colegio de San Beda It was Bibiano Baas who shouldered Raymundo's school expenses. Raymundo pursued his studies until he became a public school teacher (pp. 70-88, CFI rec.). At this juncture, the records are completely bereft of any evidence to show whether or not Bibiano Baas lived with Raymundo and his mother. At any rate, the records show that by the year 1922, Raymundo Baas used to go to the place of Bibiano Baas once or twice a week, and it was in one of his visits, sometime between 1922 and 1923, that he met Trinidad Vecino, a niece of Faustina Vecino Baas the wife of Bibiano Baas (pp. 379-381, CFI rec.). Trinidad Vecino lived with the family of Bibiano Baas and took care of his children ever since she was a young girl, sometime in 1909 (p. 391, CFI rec.).

On October 9,1926, Raymundo married Trinidad Vecino. In their marriage certificate (Exh. "H"), the name of the father of Raymundo was stated to be Bibiano Baas Pedro Baas' name appeared in the marriage certificate as one of the sponsors (p. 66, CFI rec.). After their marriage, Raymundo and Trinidad resided at Gastambide St., Sampaloc, Manila. Dolores Castillo, mother of Raymundo, lived with the couple until she died no December 27, 1940 (p. 363, CFI rec.). From Gastambide St., they transferred to Sigay St., Quiapo, Manila, where they were sometimes visited by Bibiano Baas and his wife Faustina (pp. 373 & 358, CFI rec.). On December 1, 1928, Raymundo Baas and Pedro Baas executed sworn statements before Atty. Andres Faustino wherein Raymundo Baas declared that he was the natural son of Dolores Castillo and of an unknown father as it appeared in his baptismal certificate; that in due time, he came to know that his natural father was Pedro Baas that he had realized that in his marriage certificate, dated October 9, 1926, an error had been committed in that the name of his father stated therein was Bibiano Baas brother of his said father Pedro Baas and that he is executing that sworn statement to put things in their proper place. This was recorded in the notarial book of Notary Public Andres R. Faustino as Document No. 153, series of 1928 (p. 103, CFI rec.). Pedro Baas in his sworn statement, declared that he has a natural son named Raymundo Baas whom he had with Dolores Castillo, and whom he recognized as such; that he came to know that in the marriage certificate of his aforesaid son an error had been committed in that the name of the father of Raymundo Baas appeared therein to be Bibiano Baas instead of Pedro Baas that he was executing that document to put things in the right place, and also to ask for the correction from the Justice of the Peace of the Municipality of Pasay, Rizal, of the aforesaid error committed in the marriage certificate of his son Raymundo Baas and Trinidad Vecino. This was recorded in the notarial book of Notary Public Andres R. Faustino as Document No. 154, series of 1928 (p. 113, CFI rec.). These sworn statements of Raymundo Baas and Pedro Baas were filed with the Office of Justice of the Peace Ed. Aenlle of Pasay, Rizal before whom the marriage of Raymundo Baas and Trinidad Vecino was solemnized. Accordingly, justice of the Peace Ed. Aenlle issued the following constancia: En esta fecha se han presentado en esta Oficina una declaracion suscrita y jurada ante el Notario Publico de Manila, Andres R. Faustino, el dia 1.0 del actual, por Raymundo Baas que contrajo matrimonio con Trinidad Vecino, segun el presente certificado de matrimonio haciendo constar que el verdadero nombre de su padre es PEDRO BARAS, y no BIBIANO Baas como erroneamente se puso en dicho certificado; y otra declaracion suscrita y jurada en dicha fecha y ante el mismo Notario Publico, por Pedro Baas haciendo constar que el es el padre de dicho contrayente Raymundo Baas y no Bibiano Baas como equivocadamente se consigno en dicho certificado; uedando archivadas y unidas dichas declaracion juradas al referido certificado para los efectos consiguientes las cuales se han transferido al Secretario Municipal de este Municipio juntamente con esta constancia. Y para que conste extiendo la presente corstancia en Pasay, Rizal hoy a 7 de Diciembre de 1928,

Ed. Aenlle, Juez de Paz (Exh. "2", P. 104, CFI rec.). At the bottom of this constancia there appears a handwritten notation marked Exhibit " 2-a ", which reads as follows: El original de esta timbre del juzgado se llevo Trinidad Vecino. Consequently, in the certified copy of the marriage contract of Raymundo Baas and Trinidad Vecino, Exhibit "H", the following remark appears: Segun declaracion adjunta en el certificado de matrimonio de Raymundo Baas el padre de este es Pedro Baas y no Bibiano Baas (Exh. "4", p. 66, CFI rec.). On June 30, 1930, Pedro Baas wrote to M.R.P. Juez del Arzobispado de Manila" wherein he reiterated that he had recognized his natural son born of Dolores Castillo and baptized on March 25, 1984 as Raymundo Castillo; that according to the medical certificate issued by Dr. M. Mallare Dolores Castillo suffers from mental deficiency; that he was submitting therewith copies of the declaraciones juradas executed by him and his aforesaid son no December 1, 1928 before Notary Public Andres R. Faustino; and that he was requesting that the necessary correction in the certificate of baptism of Raymundo Baas as well as those of the latter's children, Luis and Jose, be made by indicating that the father of said Raymundo, and the paternal grandfather of said Luis and Jose, is Pedro Baas and not Bibiano Baas (p. 116, CFI rec.; Exh. "9"). On July 1, 1930, Bibiano Baas executed a sworn statement stating therein that Pedro Baas had a child, Raymundo Baas with Dolores Castillo. This was recorded in the notarial book of Notary Public Vicente Larna as Document No. 1078, series of 1930 (p. 115, CFI rec.). Sometime in January, 1931, Raymundo and his family moved to 1444 Kalimbas St., Santa Cruz, Manila. The property in Kalimbas St. belonged to Bibiano Baas and was transferred to Raymundo's name on August 4, 1936 by virtue of a Deed of Sale executed by Bibiano Baas in favor of Raymundo Baas for the sum of one thousand pesos (P1,000.00) [Exhs. "11" & "l 1-a"; p. 120; CFI rec.]. On April 25, 1954, Bibiano Baas died survived by his wife and children, the defendantsappellees herein (p. 105, CFI rec.). In May, 1955, Raymundo Baas wrote two letters (Exhs. "J" & "J-1") to Atty. Andres Faustino in which he complained bitterly about the alleged injustices done to him by Faustina Vecino vda. de Baas at the same time stating that he would know what to do at the proper time. Pertinent portions of said letters read as follows:

Upang makapanloko, ginawa ni Gg. Baas ang lahat ng kanyang abilidad o paraan [metodo o sistema] upang sa huling panahon ako isang maliit na inapi at dinayaay mawalan ng lakas o katibayan na makapaghabol [sa mana] Subali't ang Diyos po ay marunong. Tinutulungan Niya ang isang taong inaapi. Ako po ay mayroong KATIBAYAN [BUHAY] (pp. 68- 69, CFI rec.). On June 24, 1955, more than a year after the death of Bibiano Baas his heirs, the defendantsappellees herein, extra-judicially settled his estate by means of a deed of extra-judicial settlement among themselves. The deed of extra-judicial settlement was notarized by Atty. Angel Vecino, brother of Trinidad Vecino (pp. 105-111, CFI rec.). On November 7, 1955, the spouses Raymundo Baas and Trinidad Vecino executed a mortgage over their house and lot in 1444 Kalimbas St., Sta. Cruz, Manila, in favor of herein defendantappellee Angel V. Baas for the sum of seventeen thousand pesos (P17,000.00). The mortgage contract was also prepared by Atty. Angel Vecino (p. 423, CFI rec.). After the spouses had paid more or less, twelve thousand pesos (Pl2,000.00), the mortgage was cancelled by Angel V. Baas (pp. 425,432, CFI rec.). On February 25, 1962, Raymundo C. Baas died survived his wife and children, the plaintiffsappellants herein (p. 93, CFI rec.; Exh. "N"). On February 12, 1965, almost three years after the death of Raymundo Baas his heirs, the plaintiffs-appellants herein, filed the instant complaint for partition or recovery of hereditary share, fruits and damages against the heirs of the late Bibiano Baas Sr., herein defendantsappellees. In support of their claim, plaintiffs-appellants presented Trinidad Vecino vda. de Baas who testified that after the death of her husband in 1962, she discovered certain documents in his aparador which established his filiation. Plaintiffs-appellants presented these documents as evidence of their contention that the late Raymundo Baas was the acknowledged natural son of the late Bibiano Baas to wit: (1) Exhibit "A"a handwritten note preserved in a glass frame which reads:

Mundo hoy a las 10 y 45. Tu no estas en casa. No requieres tu obedecer lo que te dije que en estas horas estudiar, descansar y ayudar con su madre. Que no veo mas otraves asi. 23/5/7 Su Padre (Sgd.) B. Baas. (2) Exhibit "B"a directory and homecoming souvenir program of the San Beda Alumni Association dated 1956 wherein thisentry is found: Baas R.CS'06" (p. 202, CFI rec.).

(3) Exhibits "C" & "C1" two original copies of receipts of payments for matriculation, dated June 13, and November I of the year 1905 (p. 64, CFI Rec.). (4) Exhibits "D" & "E"the 1904 and 1905 matriculation certificates of Raymundo Baas in San Beda College wherein it is stated that Raymundo Baas is "hijo de Bibiano Baas (p. 63, CFI rec.). (5) Exhibits "F", "F-1", "G" and "G-1"the 1910 and 1911 report cards of Raymundo Baas for the fifth and sixth grades of the Sampaloc Intermediate School. Exhibit "F-1" is the space at the back of the report card for the signatures of the parent or guardian. The signatures in this space had been erased, although not thoroughly, so that it can still be seen at close examination that the signatures appear to be that of Bibiano Baas Plaintiff-appellants have not offered any explanation for these erasures. Exhibit "G-1" contains the following entries: B. of E. Form No, 137 PUPIL'S RECORD CARD Name Baas Raymundo Age 17 on March 15, 1911. Home Address 62 Progreso Province Manila Int. Quiapo Parentor-Guardian BibianoBaas Occupation Reg. Practitioner (p. 65, CFI rec.). (6) Exhibit "I"a type-written statement of Raymundo Baas dated Oct. 6, 1958 setting forth his alleged personal circumstances (p. 67, CFI rec.). (7) Exhibits "J", "J-1" and "J-2"the carbon copies of the typewritten letters sent by Raymundo Baas to Atty. Andres Faustino (pp. 68-69, CFI rec.). (8) Exhibits "K" & "L"the autobiographies of Raymundo Baas Exhibit "L" is typewritten and contains intercalations, alterations and spoliations (pp. 70 & 123, CFI rec.). Plaintiffs-appellants also presented the marriage certificate of Raymundo Baas and Trinidad Vecino as evidence and was marked as Exhibit "H". Defendants-appellees, no the other hand, presented defendant-appellee Bibiano Baas Jr., who testified that after the death of Bibiano Baas Sr. in 1954, the following documents were found in the latter's safe:

(1) Duplicate original copies of the "Declaracion Jurada of Raymundo Baas and Pedro Baas executed no December 1, 1928, before Notary Public Andres R. Faustino (pp. 103 & 114, CFI rec.; Exhs. " I " & " 7 "). (2) Duplicate original copy of the "Declaracion Jurada of Bibiano Baas dated July 1, 1930, executed before Notary Public Vicente Larna (p. 115, CFI rec.; Exh. "8"). (3) Duplicate original copy of the letter of Pedro Baas dated June 30, 1930, to the M.R.P. Juez Provisor del Arzobispado de Manila (pp. 116-118, CFI rec.; Exh. "9"). (4) The envelope wherein the aforesaid documents were contained when found in the safe of Bibiano Baas Sr., no which there appears a typewritten annotation no its face which reads: Asunto Civil de Raymundo No. 10953 en Diciembre de 1913, en contra mia Sobresaido 2 Copias para el Sr. Arsobispo de Manila reconosiendo que Pedro Baas es padre de Raymundo a Dolores Castillo 30 de Junio de 1930. Aprobado. Afidavit de D. Pedro Baas Bibiano y Reymundo a 1 de Julio de 1930. UN APUNTED DE Resumen de Raymundo que hasindio un total de TRESMIL SEIS CIENTOS UNO PESOS toniados a mi estudio con mis firmas las fechas de tomas 8 de Enero de 1922" (p. 119, CFI rec.; Exhs. "10" & "10-a"). It is not disputed that Raymundo Baas had the status of a natural child. What is being disputed is whether or not he was an acknowledged natural son of Bibiano Baas. The case was tried and no January 5, 1966, the trial court rendered a decision dismissing plaintiffs-appellants' complaint mainly no the following grounds: (1) that the evidence presented by the plaintiffs-appellants were not sufficient to prove their claim that Raymundo Baas was the acknowledged natural child of the late Bibiano Baas (2) that "considering the lack of express recognition, the sworn declaration of Pedro Baas Exhibit 7, that Raymundo Baas was his son, together with the express acknowledgment made by Raymundo Baas in the sworn statement, Exhibit 1, that his father was Pedro Baiffas and not Bibiano Baas entirely negates the Idea that Raymundo was the son of Bibiano Baas; (3) that since the note (Exh. "a") addressed to Mundo with the complimentary ending "Su Padre, B. Baas invoked by the plaintiffs-appellants as their principal evidence was executed in 1907, under the regime of the Spanish Civil Code, therefore the question of whether or not Exhibit "A" is a valid form of voluntary recognition should be decided according to the old Civil Code; and in accordance with Art. 131 thereof such document does not constitute a valid voluntary recognition;

(4) that "Raymundo Baas was the son of Pedro Baas Bibiano Baas brother but since the evidence shows that Pedro Baas was unable to support himself and his wife, it could very well be that Bibiano Baas had sort of adopted or considered Raymundo, the son of his brother, to be his own son and had taken paternal solicitude for him", (5) that "(T)he failure of Raymundo Baas to take any legal action to enforce his alleged rights, or to make any written demand upon the defendants herein, are all confirmatory of the sworn statement, Exhibit 1, in which he declared that his father was Pedro Baas", (6) that "his failure to enforce his rights for a period of over eight years is indicative of the lack of merit of plaintiffs' claim" (pp45-54, CFI rec.). Plaintiffs-appellants now come before this Court with the following assignment of errors: I. The trial court erred in not holding that the fifty-nine (59) year old note of Doctor Bibiano Baas to his natural child, Raymundo C. Baas (Exh. "A", page 25, Record no Appeal), being an authentic writing, is a sufficient form of voluntary recognition under articles 278 and 2260 of the New Civil Code, which entitle the plaintiffs, as heirs of Raymundo C. Baas to claim successional rights in the estate of Doctor Baas who died in 1954. II. The trial court erred in not finding that Raymundo C. Baas was the voluntarily acknowledged natural child of Doctor Bibiano Baas as proven not only by Exhibit "A", but also by the records of San Beda College (Exh. B to E) and by the records of the Sampaloc Intermediate School (Exh. F and G) and the marriage certificate (Exh. H). III. The trial court erred (a) in giving probative value to the affidavits, Exhibits 1 and 7 both dated December 1, 1928, executed by Raymundo C. Baas and Pedro Baas and stating that Raymundo was the natural son of Pedro Baas (b) in not holding that said affidavits were nullified by the subsequent documents, namely, the 1930 "Genealo"gy in the handwriting of Raymundo C. Baas (Exh. K), and his typewritten autobiography (Exh. L), wherein Raymundo clarified that his father was Bibiano Baas and (c) in not holding that said affidavits could not revoke nor affect the status of Raymundo as a voluntarily acknowledged natural child of Bibiano Baas by virtue of Exhibit "A". IV. That trial court erred in not holding that the entry in 1926 marriage certificate of Raymundo C. Baas and Trinidad Vecino (EXIL H), that Bibiano Baas was the father of Raymundo, cannot be corrected nor nullified by the 1928 affidavits, Exhibits 1 and 7, which state that Pedro Baas was Raymundo's father, nor can such entry be the subject matter of the constancia of Justice of the Peace Ed. Aenlle of Pasay (Exh. 2), a document which was erroneously admitted as evidence by the trial court. V. The trial court erred in not holding that the affidavits, Exhibits 1 and 7, stating that Raymundo C. Baas was the natural son of Pedro Baas were part and parcel of an illegal and fraudulent compromise no the civil status of Raymundo C. Baas whose principal objective was to induce him to make a void renunciation of his hereditary rights in the estate of Ms natural father, Bibiano Baas.

VI. The trial court erred in assuming that Raymundo C. Baas consulted his insane mother with respect to the execution of Exhibits 1 and 7. VII. The trial court erred in surmising that Bibiano Baas had sort of adopted or considered Raymundo, the son of his brother, to be his own and had taken paternal solicitude in him. VIII. The trial court erred in holding that the failure of Raymundo C. Baas to enforce his claim within the eight-year period from 1954, when Bibiano Baas died, to 1962, when Raymundo died, shows that his claim had no merit. IX. The trial court erred in dismissing the complaint and in not ordering the defendants, as successors-in-interest of Doctor Baas to deliver to the plaintiffs the hereditary share in the properties in litigation of Raymundo C. Baas as a voluntarily acknowledged natural child of Doctor Baas plus his share of the fruits thereof and damages" (pp. a-d, Brief for the PlaintiffsAppellants, p. 19; rec.). I The decisive issue to be resolved herein is whether or not Bibiano Baas had voluntarily acknowledged Raymundo Baas as his natural son. WE hold that there was no voluntary recognition in the instant case. Plaintiffs-appellants rest their claim no Article 278 of the New Civil Code which provides: (7) Art. 278Recognition shall be made in the record of birth, a wilt a statement before a court of record, or in any authentic writing. WE have ruled that Article 278 should be given retroactive effect (Moscoso vs. CA, et all L46439, April 24, 1984). Plaintiffs-appellants admit that the main basis of their action is Exhibit "A" (Brief for the Plaintiffs-Appellants, p. 2; p. 19, rec.). Exhibit "A" is again quoted hereunder: Mundo hoy a las 10 y 45. Tu no estas en casa no requieres tu obedecer loque te dije, que en estas horas estudiar, descansar y ayudar con su madre. Que no veo mas otraves asi. 23/5/7 Su padre 23/5/7 B. Baas (p. 170, CFI rec.).

Trinidad Vecino vda. de Baas widow of the late Raymundo Baas and plaintiff-appellant herein, testified that this note is in the handwriting of Bibiano Baas In its regard, the observation of the trial court should be noted, and WE quote: She said that she is familiar with the handwriting of Bibiano Baas since she had often seen him write. This testimony, however, must be considered as very much strained for Exhibit "A" is dated "23/5/7"or 23 May 1907. While according to Trinidad Vecino, she saw Bibiano Baas write only as early as 1917. Considering the long lapse of time, which was around 10 years, any testimony that the writing is the handwriting of a person no the ground that the witness is familiar with the handwriting must be considered unreliable (p. 49, CFI rec.). Nevertheless, Exhibit "A" was admitted by the trial court no the ground that it is an ancient document, the authenticity of which need not be proven. Assuming that plaintiffs-appellants' Exhibit "A" is authentic document as contemplated by Article 278 of the New Civil Code, We find that the same does not constitute a sufficient proof of a valid voluntary recognition. Voluntary recognition of a natural child to be effective under the law (Art. 278), must be made expressly by the recognizing parent, either in the record of birth, in a will in a statement before a court of record, or in any authentic writing" (Vol. 1-A Padilla, Civil Law, 1975 ed., p. 83). The formalities of voluntary recognition under Article 278 of the New Civil Code is that recognition shall be express and made either in the record of birth, in a will, in a statement in a court of record, or in any authentic writing (Justice J.B.L. Reyes, Civil Law, Vol. 1, p. 262). In the case of Intestate Estate of Pareja vs. Pareja (95 Phil. 171, 172), Justice Labrador quoted Sanchez Roman who said that recognition of natural children must be precise, express, and solemn, thus: 54. En cuanto a los elementos formales del reconocimiento de hijos naturales, o sean las formas legales de llevarlo a cabo, las establecidas por el Codigo son de caracter taxativo, expreso y solemne. Lo primero, porque, segun el art. 131 y sus complementarios, 132, 133, solo puede las tener lugar dicho reconocimiento en el acta de nacimiento, en testamento o en otro documento publico, y en este ultimo caso, cuando el reconocimiento, sea de un menor, con la aprobacion judicial y audiencia del Ministerio fiscal, asi como cuando es de un mayor, siempre con su consentimiemto, segun ya se ha dicho (1). Lo segundo, porque de este mismo criterio legal taxativo y de los medios unicos que establece el articulo 131, se deduce una vez mas, que el Codigo, apartandose del sentido declarado por la jurisprudencia del Derecho anterior, no acepta la doctrina del reconocimiento tacito, ni siquira la de la libertad para acreditario por cualquiera de los medios de prueba establecidos en Derecho, cuando del reconocimiento voluntario propiamente tal se trate, siendo, a lo sumo, aquellos medios, elementos para fundar la demanda del llmado reconocimiento forzoso, a que se refieren

los articulos 135 y 136 (2), siempre que concurran las circunstancias especificas, en cuanto a la prueba de la filiacion natural, que los mismos enumeran. Lo tercerro, porque todas las formas de llevar a cabo el reconocimiento, taxativamente expresadas en el articulo 131 y complementadas para algun caso en el segundo parrafo del 133, son de caracter solemne, segun lo revelan sus distintas especies, y hasta la mas generica que expresa de documento publico, curo valor legal se establece por el articulo 1.216 (3) del Codigo; y para este efecto, como tal, debe considerarse el acta de conciliacion, calificada de documento publico y solemne por la ley de Enjuiciamiento civil (4). Tampoco cabe nagar tal caracter a la forma especial del testamento olografo, no obstante la condicion privada de su otorgamiento, puesto que la cualidad de documento publico la adquiere desde el momento en que es protocolado (5) [Tomo 5, Vol. 2, Sanchez Roman, p. 1043] (Emphasis supplied). The same concept still holds under the new law since Article 278 of the New Civil Code was taken from Article 131 of the Old Civil Code, except that the present Code adds "statement before a court of record" as a new means of recognition and changes "public document" in the old Code to "authentic writing. " Consequently, the trial court was correct when it said: The question to determine is whether Exbibit "A" is a document sufficient to constitute a recognition of Raymundo Baas by Bibiano Baas The note is addressed to Mundo and ends with the complimentary with the endingSu padre, B. BaasAre the words Su padre, B. Baasa sufficient recognition of Raymundo by Bibiano? This question must be decided no the strength of Exhibit "A" alone and not by the other evidence submitted by the plaintiff. If the Court had allowed the submission of evidence to show that Raymundo Baas was the son of Bibiano Baas it was only for the purpose of showing that Mundo, the person addressed to in Exhibit "A", was Raymundo Baas. The words Su Padre considering the evidence for the defendants are in the opinion of the Court not sufficient to constitute an intent to recognize. xxx xxx xxx

There is nothing in Exhibit "A", outside of the complimentary ending, that Raymundo Baas is the son of Bibiano Baas (p. 50, CFI rec.; emphasis supplied). The complimentary ending, Su padre," taking into consideration the context of the entire letter (EXIL "A"), is not an indubitable acknowledgment of paternity. It is a mere indication of paternal solicitude. The Filipinos are known for having very close family ties. Extended families are a common setup among them, sometimes to the extent that strangers are also considered as part of the family. In addition, Filipinos are generally fond of children, so that children of relatives or even of strangers are supported if their parents are not capable to do so. This is a manifestation of the fact that Filipinos are stin living in a patriarchal society (see opinion of then C.A. Justice Castro quoted by Chief Justice Bengzon in Gustilo vs. Gustilo, 14 SCRA 154).

Thus, in the case of Gustilo vs. Gustilo, supra, penned by Chief Justice Bengzon, analogous to the case at bar, wherein the evidence submitted as proof of voluntary recognition does not only include a letter written by the alleged father to the natural child which also ends with the complimentary ending" ... tu padre," but other stronger evidence tending to show voluntary recognition, this Court held that such evidence does not prove express recognition. Pertinent portions of the decision reads as follows:

The pertinent facts of the case were accurately described in the decision of Mr. Justice Castro of the Court of Appeals: At the trial she (Rosa) was allowed, over the objection of the defendants to introduce evidence tending to show that she was begotten in 1898, out of wedlock by Calixto Gustilo and Teodora Soqueo (both deceased) who, at the time of her conception, could marry each other without legal impediment; that from her birth until the age of 7, she was under the custody of her mother who was supported by Calixto Gustilo; that in 1902, Calixto Gustilo married Martina Poblador; and that at the age of seven she was taken into the custody of the said spouses with whom she lived for almost fifteen years. The evidence for the plaintiff further shows that in the year 1902, she studied at the Zarraga public school while she was staying with the mother of Martina at the poblacion of Zarraga; that she later enrolled at the Colegio de San Jose and at the Colegio de Santa Ana together with her sister Josefa, and all her expenses were borne by Calixto; that all along she was considered as a member of the family and addressed by her father as "Inday" and at nines "Rosa," and was introduced in pubic gatherings by Calixto as his daughter; and that she received the same treatment from her brothers and sisters and her foster mother Martina Poblador. xxx xxx xxx

The items of documentary evidence introduced by the plaintiff are the following (1) Exh. Aa marriage certificate which states that no the 8th day of October, 1922, Juan Sumagaysay, 26 years of age, the son of Rufino Sumagaysay and Gregoria Sebusa resident of Leganes Iloilo, was married to Rosa Gustilo, 23 years of age, the daughter of Calixto Gustilo and Teodora Soqueo. (2) Exh. Ba letter of Calixto Gustilo addressed to Rosa, and dated February 12, 1917, pertinent part of which reads: 'Seorita Rosa Gustilo y su hermana Josefa, Queridas hija: ... Conservamas buenas que es siempre el desee de tu padre (Fdo.) CALIXTO GUSTILO. (3) Exh. Ca letter of Augusta Gustilo to Rosa Gustilo dated September 5, 1918 which in part says: "Senorita Rosa Gustilo, Colegio Santa Ana, Molo, Iloilo Islas Filipinos, Mis muy queridas Hermanas: ...Vuestro hermano que es requiere (Fdo.) AUGUSTO GUSTILO. (4) Exh. Da letter of August Gustilo to Rosa dated February 1, 1920, which in part says: 'Senorita Rosa Gustilo, Zarraga, Iloilo, Islas Filipinos, Mis querida hermana: ... Tu hermano que te requiere. (Fdo.) AUGUSTO GUSTILO.

(5) Exh. Ea motion filed by Augusta Gustilo with the Court in behalf of Rosa dated December 10, 1945, which in part reads: 'Rosa Gustilo, my sister, is the registered owner of Lot 9500 of the Cadastral Survey of Santa Barbara, now Zarraga. ... (fdo.) AUGUSTO GUSTILO. (6) Exh. Fa deed of donation executed by Calixto Gustilo himself in favor of Rosa in a public document, duly accepted by the latter in the same document, which states in substance that in consideration of the donation the donee will renounce her participation in his estate after his death. Under the facts set out in the first paragraph above quoted, Rosa Gustilo could conceivably have filed an action for compulsory recognition under Art. 283 of the New Civil Code alleging continuous possession of the status of a natural child of Calixto Gustilo by direct acts of the latter or of his family; but as she did not file such action before his death, she is now precluded from bringing it, inasmuch as she was already mature (64) when Calixto died; and as she did not claim (nor prove) to have discovered after his death some document actually recognizing her. Therefore, this action may not be entertained as an action to compel recognition It must be regarded as an action by a recognized natural child to enforce her rights as such. As the Court of Ap has stated, the only provision of law upon which Rosa may now rest her claim is Art. 278 of the New Civil Code, which reads as follows: Art. ... Admittedly, plaintiff has not been recognized in a record of birth, nor in a will but she rests her claim to filiation no the strength of either a statement before a court of record or statements in an authentic writing. It must be obvious that such statement, to be effective, must be one made by Calixto himself; and that the writing must be the writing of Calixto. Let us now examine the documents presented. Exh. Athe certificate of marriage of Rosa Gustilo with Juan Sumagaysay, stating she was the daughter of Calixto Gustilo and Teodora Soqueo. As it does not appear that this has been signed by Calixtoit is enough. On the same ground, the other papers, Exhs. C, D and E all signed by Augusto Gustilo must be discarded. Exh. Bis a letter signed by Calixto addressed to "Rosa Gustilo y su hermana Josefa." It says: "Queridas hijas: ... Conservanmas buenas que es siempre el desee de tu padre." The Court of Appeals deemed this letter to be insufficient for it contends no unequivocal avowal that Rosa was Calixto's child. Indeed, it was addressed also to Josefa who was admittedly his own child. It should specially be noted that the letter spoke of tu padre' referring to his wife Martina who was the mother of Josefa not of Rosa. At any rate there is much sense in Justice

Castro's observation that 'it is not uncommon in many Filipino homes that a child who is a perfect stranger to the family but who was taken under similar circumstances, is regarded as a member of the family and called "hija" or "hijo " by the head thereof.' This view follows and coincides with the line of thought expressed by Manresa in that portion of his commentaries, quoted with approval in Joaquin v. Joaquin, 60 PhiL 399 wherein adverting to written acknowledgments of paternity of a natural child, he explained: En cuanto al otro requisito de ser expreso el reconocimiento ... el excrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener por objeto el reconocimiento deliverado y expreso del hijo natural. No ulna, pues, ese objeto la manifestation que incidentalmente haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho mas el dar a una persona el titulo y tratemiento de hijo en certas familiares (Manresa, Commentarios al Codigo Civil, Tomo 1, pag. 580, 3a ed.) Needless to add, Manresa's above opinion was written as a comment to Art. 131 of the Spanish Civil Code which is exactly the same as Art. 278 of the New Civil Code, except that 'in some other public document' has been substituted with 'in any authentic writing. This letterto recall our previous indicationscould probably be material evidence in a suit to compel recognition. However, it is not by itself a voluntary act of recognition, such as is contemplated in Art. 278, which act must be precise and express (Pareja v. Pareja, L-6823, May 31, 1954). For as Gitt v. Gitt exemplifies, there may be direct acts of the father which though not constituting voluntary acknowledgment of a natural child, may be used to "compel" recognition as such (emphasis supplied). A FORTIORI plaintiffs-appellants' argument that Exhibit As complimentary clause "su padre," is a categorical admission by Bibiano Baas that he was the father of "Mundo" or Raymundo Baas must necessarily fail. II Plaintiffs-appellants argued that under the rule of incidental acknowledgment, Exhibit "A" is a sufficient form of recognition (p. 19, rec., Brief for the Plaintiffs-appellants, p. 40). To support their contention, plaintiffs-appellants cited the case of Donado vs. Menendez Donado (55 Phil. 861, 872), and quoted therefrom the following: xxx xxx xxx

The terms in which the acknowledgment is made are immaterial and Goyena's opinion is admissible that, with reference to article 124 of the bill of 1851, the law inclines favorably to an acknowledgment made incidentally or in any terms, so long as the intention to acknowledge sufficiently appears. "It is enough," he adds, "that the testator mention the legatee as his natural child," who may thenceforth demand his rights as a natural child, even if the will is revoked. According to the cases cited above and Manresa's opinion, acknowledgment made in a public or private document need not be direct, but may even incidentally admit that the person whose

name appears in the document in question is the subscriber's child (p. 19, rec., p. 41, Brief for the Plaintiffs-appellants, emphasis supplied). Plaintiffs-appellants went no further to cite the cases of Javelona vs. Monteclaro (74 Phil. 393), Apacible vs. Castillo (74 PhiL 589), and Cosio vs. Pili (10 PhiL 72). They alleged that based no the above-mentioned quotation and cited cases, the rule of incidental acknowledgment applies to Exhibit "A" which, therefore, constitutes a sufficient and valid voluntary recognition of Raymundo Baas by Bibiano Baas. WE do not agree. Plaintiffs-appellants have erroneously applied the rule of incidental acknowledgment. They have completely failed to note that all of the authorities they cited endorse incidental acknowledgment, in cases of voluntary recognition, if the alleged voluntary recognition were made in a public document. The reason for this is quite simple. Nowhere in these cited cases can be found any statement that incidental voluntary acknowledgment may be made in a private writing, simply because all of these cited cases were decided long before the adoption of the New Civil Code. Under the regime of the Old Civil Code, a voluntary recognition can only be made in a record of birth, will or other public document (Art. 131). A private writing or document, under the Old Civil Code, may be considered as an "indubitable writing" which is a ground for compulsory recognition according to Art. 135 thereof. Justice Villa-Real in the case of Donado vs. Menendez Donado (55 Phil. 861), cited by the plaintiffs-appellants, was referring to both Articles 131 and 135 of the Spanish Civil Code of 1889, or the Old Civil Code, when he said that, an "acknowledgment made in a public or private document need not be direct, but may even incidentally admit that the person whose name appears in the document in question is the subscriber's child." This statement of Justice VillaReal was clarified by Justice Bocobo in the case of Javelona, et all vs. Monteclaro, et al. (74 Phil. 393, 398; 400)-also cited by the plaintiffs-appellants when he clearly laid down the ratio legis of the doctrine of incidental acknowledgment under Article 131 of the Old Civil Code, thus: Upon the second point, whether a voluntary acknowledgment may be done incidentally in a public document, a distinction must be made between the two kinds of acknowledgment: (1) voluntary, and (2) compulsory. In the former, recognition may be incidental but in the latter, it must be direct and express. xxx xxx xxx

We adopted the same rule as to article 131 in the case of Donado vs. Menendez Donado, 55 PhiL 861, 872, when we held that an acknowledgment in a document need not be direct, but may even incidentally admit that the person whose name appears in the document is the subscriber's child. The reasons for the above distinction between express recognition in article 135 and incidental acknowledgment according to article 131 are not far to seek. In the first place, a voluntary recognition is made in a public document (Art. 131) whereas the indubitable writing under article 135 is a private document (Manresa, vol 1, p. 579). The father would ordinarily be more careful about what he says in a public document than in a private writing, so that even an incidental mention of the child as his in a public document deserves full faith and credit ...

In the second place, in an action no Article 131 (voluntary recognition) the natural child merely asks for a share in the inheritance in virtue of his having been acknowledged as such, and is not trying to compel the father or his heirs to make the acknowledgment whereas the action based no Article 135 is to compel the father or his heirs to recognize the child. In the former case, acknowledgment has been formally and legally accomplished because the public character of the document makes judicial pronouncement unnecessary, while in the latter case, recognition is yet to be ordered by the courts because a private writing, lacking the stronger guaranty and higher authenticity of a public document, is not self-executory... (lbid, pp. 398, 400, emphasis supplied). It is therefore clear that the rule of incidental acknowledgment does not apply to plaintiffsappellants' Exhibit "A" since it is not a public document where a father would ordinarily be more careful about what he says. In fact, Exhibit "A" is merely a short note whereby a 13-year old boy is being admonished for staying out late and not staying at home studying his school lessons or helping his mother. Moreover, in Manresa's opinion invoked by the plaintiffs-appellants, it is emphasized therein that while the terminology in which the acknowledgment is made is immaterial, the sine qua non is that the act of recognition must be "con tal que de ellos aparezra suficientemente la intencion de hacerlo". In other words, the intent to recognize must be sufficiently apparent in the document. And, as WE have earlier indicated, the complimentary ending Su padre," taking into consideration the context of the entire letter (Exh. "A"), is not an indubitable acknowledgment of paternity, but merely an indication of the paternal concern of one for the well-being of the natural son of his brother who could not support or rear the boy. The intent to recognize, therefore, is not apparent in Exhibit "A". III Plaintiffs-appellants also presented the school records (Exhs. "B" to "F") of Raymundo Baas and a certified copy of his marriage certificate (Exh. "H"), to further support their claim. However, these school records could not be said to be confirmative of any intention no the part of Bibiano Baas to recognize Raymundo as his natural son since school records are prepared, not by Bibiano, but by the school authorities concerned. The same can also be said of the marriage certificate of Raymundo Baas and Trinidad Vecino which was prepared by the church authorities concerned. In addition to this, the records in the case at bar are completely bereft of any evidence to show that Bibiano Baas furnished the statements therein or that he had any participation in securing the enrollment and the marriage certificate of Raymundo nor made representations in connection therewith. This Court held that the authentic writing upon which the claim to filiation rests must, to be effective, be one made by the putative father himself and that the writing must be the writing of the said alleged father (Gustilo vs. Gustilo, 14 SCRA 149; Malonda vs. Malonda, 81 PhiL 149; Adriano vs. de Jesus, 23 Phil. 350). Likewise, in the case of Cid vs. Brunaman (24 SCRA 439), this Court held that a birth certificate does "not constitute a sufficient act of acknowledgment, since the latter must be executed by the

child's father or mother, and the parish priest can not acknowledge in their stead (Canales vs. Arrogante, 91 Phil. 6)." In the case of Exhibit "F", although Bibiano Baas signatures appeared at the back of the report card of Raymundo Baas no the space provided for the signatures of the parent or guardian, still it does not constitute a sufficient act of recognition for it could very well be that Bibiano Baas affixed his signatures no the report card of Raymundo as a guardian and not as parent of the latter. As pointed out by the trial court: The evidence shows that Pedro Baas even during his marriage, had always lived with the spouses Bibiano Baas and Faustina Vecino. It would appear, therefore, that Pedro Baas was unable to support himself and his wife, and it could very well be that Bibiano Baas had sort of adopted de factonotlegally or considered Raymundo, the son of his brother, to be his own "ampon" in Tagalog or Filipino, and had taken paternal solicitude for him (p. 50, CFI rec.). Furthermore, since the signatures of Bibiano Baas appearing in Raymundo's report MM may be construed as the signature of a mere guardian, the recognition, if there is any, cannot be said to be precise and express as required by Article 278. WE must not also fail to mention the fact that Exhibit "F" contains erasures for which plaintiffsappellants have not offered any explanation. The signatures of Bibiano Baas appearing therein can hardly be read except no close examination. IV Plaintiffs-appellants' claim of voluntary recognition no the part of Bibiano Baas runs counter to the established facts of the case. The sworn statementa public document(Exh "8", p. 115, CFI rec.), executed by Bibiano Baas no July 1, 1930, before Notary Public Vicente Larna wherein Bibiano declared that Raymundo was the son of his brother, Pedro Baas clearly shows that he had no intention whatsoever to recognize Raymundo as his natural son, nor had he ever treated Raymundo as such. Consequently, even if the evidence presented by the plaintiffs- appellants constitute a sufficient proof of a voluntary recognition, still their complaint will not prosper since it is evident that if there was acknowledgment no the part of Bibiano, he had rectified or repudiated the same by his sworn statement (Exh. "8"). Accordingly, "(T)he recognition of a child as a natural child by any means required by law may be subsequently corrected by the person who made the acknowledgment. There is no provision in any of the laws now in force which prohibits the father or the mother who recognized a person as their natural or their legitimate child, to make, by any of the means prescribed or recognized by law, such a rectification that is, to deny to said person the previously acknowledged status of the child. Neither is it necessary in order that a rectification of this nature be made, that there be a legal provision to authorize it, for the reason that the law cannot foresee the cases where, by reason of the ineluctable dictates of conscience of the necessity of safeguarding some right, such a rectification may be necessary and just. Nevertheless, such rectification must not be arbitrary and its purpose must be to show that the acknowledged child does not have the conditions that the law requires in order that he may be so acknowledged, or that he has not the absolute condition of being the child of the person who acknowledged him, or that such person could not

have begotten him, or that the child is the child of a third person (Francisco, Civil Law, Bk. I, pp. 734, 735, citing the case of Remigio v. Ortiga 33 Phil. 614, emphasis supplied). Corollary to this, Raymundo and Pedro Baas had acknowledged the paternal relationship between them when they executed sworn statements (Exhs. 1 and 7, pp. 103, 113, CFI rec.) no December 1, 1928, before Atty. Andres Faustino, whereby Raymundo declared that he was the natural son of Dolores Castillo and of an unknown father as it appeared in his baptismal certificate; that Id due time, he came to know that his natural father was Pedro Baas. Pedro Baas in his sworn statement, declared that he has a natural son named Raymundo Baas whom he begot with Dolores Castillo, and whom he recognized as such. The reason given by the affiants Raymundo and Pedro Baas why they were executing their sworn statements, is to put no record the true state of things; because they had realized that in the marriage certificate of Raymundo and Trinidad Vecino, dated October 9,1926, an error had been committed in that the name of Raymundo's father stated therein was Bibiano Baas brother of his father, Pedro Baas And that, therefore, they are asking for the correction of the aforesaid error in the marriage certificate from the Justice of the Peace Ed Aenlle of Pasay, Rizal before whom the marriage of Raymundo and Trinidad was solemnized. To OUR mind, this is a valid and sufficient reason for Raymundo and Pedro Baas to execute their sworn statements. Plaintiff-appellant Trinidad Vecino Vda. de Baas claims that the sworn statement of Raymundo was allegedly executed by the latter in consideration of Bibiano Baas promise to give them an additional lot. But, as the trial court correctly observed, "(T)rue, Trinidad Vecino vaguely declared that the sworn statement was executed by Raymundo Baas because of the promise to give them another lot in addition to the Kalimbas lot. But this testimony must fail in the face of her insistent testimony that she came to know of the sworn statement, Exhibit 1, only after the death of Raymundo Baas in 1962" (p. 49, CFI rec.). In other words, how can Trinidad Vecino Vda. de Baas be believed in her testimony that Exhibit I was executed in consideration of said promise, since Exhibit 1 was executed without her knowledge way back in 1928. Moreover, the sworn statement of Raymundo Baas was executed no December 1, 1928, or almost two years before Raymundo and his family moved to the Kalimbas lot, and more than six years before the said property was transferred to Raymundo's name. Under these premises, how can plaintiff-appellant Trinidad Vecino Vda. de Baas now validly claim that Raymundo executed that sworn statement in consideration of Bibiano Baas 'promise of an additional lot when in fact Raymundo had not received any lot from Bibiano Baas when he executed such sworn statement. On the other hand, as it appears in the records, the Kalimbas property was sold and not given or donated by Bibiano Baas to Raymundo Baas Obviously, plaintiffs-appellants' arguments no this point are completely unfounded. It is evident from the records that Raymundo Baas had recognized the truth of his declaration in Exhibit "1". As correctly pointed out by the counsel for the defendants- appellees, "Raymundo had all the opportunity to nullify or to formally declare as untrue his aforesaid sworn statement. The fact that he never did, is cogent proof of his own acknowledgment of the truth of the contents of the same" (p. 22, rec., Brief for the defendants-appellees, p. 50).

Raymundo's recognition of the truth of his statement in Exhibit " 1 " is reflected in the alleged copies of his letter (Exhs. till and "J-2"), to Atty. Andres Faustino. Nowhere in the said letters bristling with unconcealed bitterness, did he say that he had a claim against the estate of Bibiano Baas as the latter's acknowledged natural son. Not only did Raymundo fail to categorically state that he is Bibiano's acknowledged natural son, he also did not make any reference to Exhibit "1" which he executed before Atty. Andres Faustino. Thus: ... Where a party has the means in his power of rebutting and explaining the evidence adduced against him, f it does not tend to the truth, the omission to do so furnishes a strong inference against him (Broom's Legal Maxims, 10th Ed. by R. H. Kersley p. 638). V The records show that Raymundo Baas obviously bitter and discontended because he was not given a share in the estate of Bibiano Baas failed to file a formal claim or demand during the eight-year period between the death of Bibiano Baas in 1954 and his own in 1962. Human nature normally dictates that Raymundo should establish his filiation to Bibiano, especially if such action can benefit him and his family. The urgency of such action is heightened in the case of Raymundo since it can be deduced that they were having financial difficulties from the mortgage executed by the spouses Raymundo and Trinidad over their own house and lot in favor of Angel V. Baas a legitimate son of Bibiano Baas and defendantappellee herein, no November 7, 1955, a few months after the settlement of Bibiano's estate. As correctly observed by the trial court, "his (Raymundo's) failure to enforce Ws rights for a period of over eight years is indicative of the lack of merit of plaintiffs' claim (p. 52, CFI rec.). VI Finally, that Raymundo Baas was not an acknowledged natural son of Bibiano Baas is further shown by the fact that plaintiffs-appellants' allegation that the documents tending to prove Raymundo's filiation were only discovered after the latter's death defies belief. Included in those documents allegedly discovered were the letters of Raymundo to Atty. Andres Faustino wherein he complained bitterly about the alleged injustices done to him by Faustina Vecino vda. de Baas He even adverted in the said letters that he had in his possession proofs of his claim and that he would know what to do when the proper time comes. These letters, to Our mind, could not have been written without the knowledge of Trinidad since it is only natural for Raymundo, as a husband, to share his sentiments with Trinidad, his wife. Raymundo was naturally expected to share with his wife Trinidad his bitterness, more especially since Trinidad is definitely not a stranger to the family of Bibiano Baas It must be noted that Trinidad once stayed with and served the family of Bibiano Baas aside from being the niece of Faustina, Bibiano's wife. Thus, it is highly improbable that Raymundo will hide from his wife whatever proofs he has in his possession to support his claim to a share in the estate of Bibiano Baas

Furthermore, anything of sentimental value, such as old school records, autobiographies, letters, etc., is normally shared between husband and wife. Hence, it is likewise not normal for Trinidad not to have seen before Raymundo's death mementos which tend to establish his filiation to Bibiano. The conflicting testimonies of Trinidad Vecino vda. de Baas no this point lend credence to Our view that the documents presented as evidence by the plaintiffs-appellants to support their claim, were already known to the plaintiffs-appellants long before Raymundo's death. When asked, no cross-examination, whether she and her husband, Raymundo, discussed matters pertaining to Raymundo's claim in the estate of Bibiano Baas after the latter's death in 1954, she answered in the negative (p. 426, CFI rec.). However, upon re-cross-examination, she answered in the following manner: ATTY. REGALADO Q. Testifying no Exhibit "J", do you happen to know, Mrs. Baas whether the original of this letter allegedly prepared by Raymundo Baas address to Atty. Andres Faustino was ever sent to Atty. Faustino? A. I do not know, sir.

Q. And after you read this paragraph here which had been marked Exhibit 'J-l,' you state that what you understood therefrom was the fact that he was not given the additional lot allegedly promised by Dr. Bibiano Baas How did you come to that conclusion? Was it because during the period of his lifetime or after the death of Bibiano Baas you discussed with your husband the matter of your claim against his estate? A. Yes sir.

Q. In other words, after the death of Dr. Bibiano Baas and before the death of Raymundo Baas you were already discussing the death of your claim against the estate and that he had a feeling that he was going to be defrauded. Is that not correct? A. We were waiting for their willingness or voluntariness in giving whatever share we would be given. Q. But my question, Mrs. Baas was during that period8-year period, after the death of your husband from the years from 1954 to 1962, you were actually discussing with your husband the matter of making a claim against the estate of Dr. Baas and you were fearing that you might be defrauded from your due participation Is that not true? A. Yes, sir. One time I visited my aunt, Mrs. Faustina Baas and I asked her how she was and I reminded her about the promise to give us one more lot and she said, 'I am not greedy; I win take care of you.

Q. And no that occasion did you tell her that you were asking for the share of Raymundo specifically as the son of Dr. Baas or as a matter of gratification by reason of the services that you tendered to the children of Dr. Baas by rearing them in their childhood? A. What pertains to Raymundo Baas would pertain to hint What is mine is different.

COURT. Q. So in this occasion when you were asking the widow about that one lot were you asking her as gratification or compensation for your services? A. Q. A. As far as I am concerned, what they would give me. But did you ask for the share they would give you. Yes, sir. That was what I told themwhat they were giving to Raymundo.

ATTY. REGALADO Q. You told Mrs. Faustina Baas that you are there claiming in behalf of Raymundo Baas as the son of Bibiano Baas and, therefore, you wanted the share of Raymundo Baas is that what you told your aunt? A. Yes, sir.

Q. Why did you go there by yourself? Why did you not ask Raymundo Baas himself to go there and claim since he was the son? A. Before that, both of us went to see my aunt but later no I went by myself because my husband was in class. Q. When did you go there together with your husband to demand the matter of his participation as the alleged son of Dr. Bibiano Baas ? A. Q. A. More or less in 1955. After the death of Bibiano Baas? Yes, sir.

Q. You said so to your aunt, Faustina. And you made it plain to them that you were claiming the property of Raymundo as the son of Dr. Bibiano Baas ? A. Q. Yes, sir. You said so to your aunt, Faustina vda. de Baas ?

A. Q. A.

Yes, sir. And what did she say, if she said anything? She said, 'Yes, you just wait later on.

Q. On that occasion you did not hesitate nor were you embarrassed to make that demand even if you believed that in Cavite you are not supposed to "mangamangalawa" in the matter of claims to inheritance? A. Q. "L"? Yes, sir. And that was long before you even discovered these alleged documents, Exhibits "A" to

A. Yes, sir, because these documents were discovered in 1962 (pp. 439-441, CFI rec.; emphasis supplied). It is patent from the above that the testimony given by Trinidad Vecino vda. de Baas cannot be considered reliable. Inasmuch as she is the plaintiffs-appellants' principal witness, their claim is rendered groundless. Moreover, this casts doubt no the other evidence presented by the plaintiffs-appellants, such as Exhibit "I", the alleged typewritten statement of Raymundo Baas dated October 6, 1958, setting forth his personal circumstances. This statement was made at a time when Raymundo had already made known through his letters to Atty. Andres Faustino of his discontent over the settlement of the estate of the late Bibiano Baas Therefore, the possibility that Raymundo might have some hidden motives, aside from merely establishing his filiation, cannot be ignored. The same can also be said of Exhibits "K" and "L", the alleged autobiographies of Raymundo Baas This is especially true of Exhibit "L", which not only is typewritten, but also contains intercalation's and spoliation's. VII Raymundo should and could have filed an action for compulsory recognition during Bibiano's lifetime, alleging continuous possession of the status of a natural child by direct acts of Bibiano or of his family, and that he has in his favor proof that Bibiano is his father. Considering that Raymundo was born in 1894, and was already of majority age in 1915, long before Bibiano's death in 1954, he should and could have filed such action either under Article 135 of the Old Civil Code, or Article 283 of the New Civil Code. Article 135 of the Old Civil Code and Article 283 of the New Civil Code read as follows: Art. 135. The father may be compelled to acknowledge his natural child in the following cases:

1. When an indubitable writing of his exists in which he expressly acknowledges his paternity; 2. When the child is in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself or that of his family; ... (emphasis supplied). 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 the status of a child of the alleged father by the direct acts of the latter or of his family; 3. When the child was conceived during the time when the mother cohabited with the supposed father; 4. When the child has in his favor any evidence or proof that the defendant is his father (emphasis supplied). Raymundo's failure to institute an action for compulsory recognition during Bibiano's lifetime under either of the above cited law, militates against plaintiffs-appellants' complaint for partition or recovery of hereditary share, fruits and damages. Article 137 of the Old Civil Code and Article 285 of the New Civil Code provide that the action of the natural child for compulsory recognition prescribes, if not taken during the lifetime of the alleged parents, unless the case falls within the exceptions which allow the filing of such action even after the death of the alleged parents, thus: Art. 137. Actions for the acknowledgment of natural children may be commenced only during the lifetime of the putative parents except in the following cases: 1. If the father or mother dies during the minority of the child, in which case the latter may commence the action within the four years next following the attainment of its majority; 2. If, after the death of the father or mother, some document, before unknown should be discovered in which the child is expressly acknowledged; In this case the action must be commenced within six months next following the discovery of such document (Old Civil Code). 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; 2. If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document" (New Civil Code; emphasis supplied). It is obvious that under the above-cited law, after the death of Bibiano Baas Raymundo was precluded from filing an action for compulsory recognition against Bibiano's heirs, Raymundo was already 60 years old when Bibiano died in 1954. This rules out the first exception. The alleged documents which established Raymundo's filiation to Bibiano were not unknown to Raymundo during tile latter's lifetime. And, as We have pointed out, these documents could not even have been unknown to his wife, Trinidad Vecino. Furthermore, in the second exception, the document discovered after the death of the alleged parents, should be one in which the natural child is expressly acknowledged by either or both parents. In the documents presented and relied no by the plaintiffs-appellants, there is no express acknowledgment by Bibiano Baas of Raymundo as his natural child. Granting that, after the death of Bibiano Baas Raymundo could file an action for compulsory recognition against Bibiano's heirs, still plaintiffs-appellants cannot invoke Raymundo's right to file such action, because it is not transmissible to the natural child's heirs; the right is purely a personal one to the natural child (Paras, Civil Code Annotated, 1971 ed., p. 654). As held by this Court in the case of Conde vs. Abaya (13 Phil. 249), 14 such action for the acknowledgment of a natural child can only be exercised by him. It cannot be transmitted to his descendants, or to his ascendants." The reason advanced by this Court, through Chief Justice Arellano, is as follows: It is most illogical and contrary to every rule of correct interpretation that the right of action to secure acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right to claim legitimacy from his predecessor is not, as a rule, conceded to the heirs of the legitimate child, but only relatively and as an exception. Consequently, the pretention that the right of action no the part of the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether No legal provision exists to sustain such pretention, nor can an argument of presumption be based no the lesser claim when there is no basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs of the natural child no a better footing than the heirs of the legitimate one, when, as a matter of fact, the position of natural child is not better than, nor even equal to, that of a legitimate child (p. 256). As earlier indicated, the evidence presented by the plaintiffs-appellants does not constitute a sufficient act of voluntary recognition, but, may be a ground for compulsory recognition under Article 135 of the Old Civil Code, or Article 283 of the New Civil Code. And since, as discussed above, the right to compel acknowledgment solely belongs to the natural child and cannot be

inherited and exercised by his heirs, plaintiffs-appellants have no personality to file such action, it follows that their complaint is totally baseless. WHEREFORE, THE DECISION APPEALED FROM BEING IN CONFORMITY WITH THE FACTS AND THE LAW, THE SAME IS HEREBY AFFIRMED. COSTS AGAINST PLAINTIFFS-APPELLANTS. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 76873 October 26, 1989

DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO & DOMINADOR, all surnamed UYGUANGCO, petitioners, vs. COURT OF APPEALS, Judge SENEN PENARANDA and GRACIANO BACJAO UYGUANGCO, respondents. Constantino G. Jaraula for petitioners. Anthony Santos for respondents.

CRUZ, J.: The issue before the Court is not the status of the private respondent, who has been excluded from the family and inheritance of the petitioners. What we are asked to decide is whether he should be allowed to prove that he is an illegitimate child of his claimed father, who is already dead, in the absence of the documentary evidence required by the Civil Code. The trial court said he could and was sustained by the respondent Court of Appeals. 1 The latter court held that the trial judge had not committed any grave abuse of discretion or acted without jurisdiction in allowing the private respondent to prove his filiation. Moreover, the proper remedy was an ordinary appeal and not a petition for prohibition. The petitioners ask for a reversal of these rulings on the ground that they are not in accordance with law and jurisprudence. Apolinario Uyguangco died intestate in 1975, leaving his wife, Dorotea, four legitimate children (her co-petitioners herein), and considerable properties which they divided among themselves. 2 Claiming to be an illegitimate son of the deceased Apolinario, and having been left out in the

extrajudicial settlement of his estate, Graciano Bacjao Uyguangco filed a complaint for partition against all the petitioners. 3 Graciano alleged that he was born in 1952 to Apolinario Uyguangco and Anastacia Bacjao and that at the age of 15 he moved to his father's hometown at Medina, Misamis Oriental, at the latter's urging and also of Dorotea and his half-brothers. Here he received support from his father while he was studying at the Medina High School, where he eventually graduated. He was also assigned by his father, without objection from the rest of the family, as storekeeper at the Uyguangco store in Mananom from 1967 to 1973. 4 In the course of his presentation of evidence at the trial, the petitioners elicited an admission from Graciano that he had none of the documents mentioned in Article 278 to show that he was the illegitimate son of Apolinario Uyguangco. 5 These are "the record of birth, a will, a statement before a court of record, or (in) any authentic writing." The petitioners thereupon moved for the dismissal of the case on the ground that the private respondent could no longer prove his alleged filiation under the applicable provisions of the Civil Code. 6 Specifically, the petitioners argued that the only evidence allowed under Article 278 to prove the private respondent's claim was not available to him as he himself had admitted. Neither could he now resort to the provisions of Article 285 because he was already an adult when his alleged father died in 1975, and his claim did not come under the exceptions. The said article provides as follows: 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; (2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document. As earlier related, the motion to dismiss was denied, prompting the petitioners to seek relief in vain from the respondent court. In the case now before us, the petitioners reiterate and emphasize their position that allowing the trial to proceed would only be a waste of time and effort. They argue that the complaint for partition is actually an action for recognition as an illegitimate child, which, being already barred, is a clear attempt to circumvent the said provisions. The private respondent insists, on the other hand, that he has a right to show under Article 283 that he is "in continuous possession of the status of a child of his alleged father by the direct acts of the latter or of his family." We find that this case must be decided under a new if not entirely dissimilar set of rules because the parties have been overtaken by events, to use the popular phrase. The Civil Code provisions

they invoke have been superseded, or at least modified, by the corresponding articles in the Family Code, which became effective on August 3,1988. Under the Family Code, it is provided that: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The following provision is therefore also available to the private respondent in proving his illegitimate filiation: 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) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

While the private respondent has admitted that he has none of the documents mentioned in the first paragraph (which are practically the same documents mentioned in Article 278 of the Civil Code except for the "private handwritten instrument signed by the parent himself'''), he insists that he has nevertheless been "in open and continuous possession of the status of an illegitimate child," which is now also admissible as evidence of filiation. Thus, he claims that he lived with his father from 1967 until 1973, receiving support from him during that time; that he has been using the surname Uyguangco without objection from his father and the petitioners as shown in his high school diploma, a special power of attorney executed in his favor by Dorotea Uyguangco, and another one by Sulpicio Uyguangco; that he has shared in the profits of the copra business of the Uyguangcos, which is a strictly family business; that he was a director, together with the petitioners, of the Alu and Sons Development Corporation, a family corporation; and that in the addendum to the original extrajudicial settlement concluded by the petitioners he was given a share in his deceased father's estate. 7 It must be added that the illegitimate child is now also allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," like his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. 8

The problem of the private respondent, however, is that, since he seeks to prove his filiation under the second paragraph of Article 172 of the Family Code, his action is now barred because of his alleged father's death in 1975. The second paragraph of this Article 175 reads as follows: The action must be brought within the same period specified in Article 173, 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. (Italics supplied.) It is clear that the private respondent can no longer be allowed at this time to introduce evidence of his open and continuous possession of the status of an illegitimate child or prove his alleged filiation through any of the means allowed by the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of his alleged son's illegitimate filiation. In her Handbook on the Family Code of the Philippines, Justice Alicia Sempio-Diy explains the rationale of the rule, thus: "It is a truism that unlike legitimate children who are publicly recognized, illegitimate children are usually begotten and raised in secrecy and without the legitimate family being aware of their existence. Who then can be sure of their filiation but the parents themselves? But suppose the child claiming to be the illegitimate child of a certain person is not really the child of the latter? The putative parent should thus be given the opportunity to affirm or deny the child's filiation, and this, he or she cannot do if he or she is already dead." 9 Finally, it must be observed that the provisions invoked by the parties are among those affected by the following articles in the Family Code: Art. 254. Titles III, IV, V, VI VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17,18,19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Graciano's complaint is based on his contention that he is the illegitimate child of Apolinario Uyguangco, whose estate is the subject of the partition sought. If this claim can no longer be proved in an action for recognition, with more reason should it be rejected in the said complaint, where the issue of Graciano's filiation is being raised only collaterally. The complaint is indeed a circumvention of Article 172, which allows proof of the illegitimate child's filiation under the second paragraph thereof only during the lifetime of the alleged parent. Considering that the private respondent has, as we see it, established at least prima facie proof of his alleged filiation, we find it regrettable that his action should be barred under the said article. But that is the law and we have no choice but to apply it. Even so, the Court expresses the hope that the parties will arrive at some kind of rapprochement, based on fraternal and moral ties if not

the strict language of the law, that will allow the private respondent an equitable share in the disputed estate. Blood should tell. WHEREFORE, the petition is GRANTED, and Civil Case No. 9067 in the Regional Trial Court of Misamis Oriental, Branch 20, is hereby DISMISSED. It is so ordered. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. L-57062 January 24, 1992 MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners, vs. HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI and PAULINA MARIATEGUI, respondents. Montesa, Albon & Associates for petitioners. Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late Maria del Rosario Mariategui. Tinga, Fuentes & Tagle Firm for private respondents.

BIDIN, J.: This is a petition for review on certiorari of the decision * of the Court of Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the judgment of the then Court of First Instance of Rizal, Branch VIII ** at Pasig, Metro Manila. The undisputed facts are as follows: Lupo Mariategui died without a will on June 26, 1953 (Brief for respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first wife, Eusebia Montellano, who died on November 8, 1904, he begot four (4) children, namely: Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and was survived by her children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died and left a son named Ruperto. With his second wife, Flaviana Montellano, he begot a daughter named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p. 36).

Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime in 1930. They had three children, namely: Jacinto, born on July 3, 1929, Julian, born on February 16, 1931 and Paulina, born on April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid). At the time of his death, Lupo Mariategui left certain properties which he acquired when he was still unmarried (Brief for respondents, Rollo, pp. 116; 4). These properties are described in the complaint as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39). On December 2, 1967, Lupo's descendants by his first and second marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina, executed a deed of extrajudicial partition whereby they adjudicated unto themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of a voluntary registration proceedings filed by the adjudicatees under Act No. 496, and the land registration court issued a decree ordering the registration of the lot. Thus, on April 1, 1971, OCT No. 8828 was issued in the name of the above-mentioned heirs. Subsequently, the registered owners caused the subdivision of the said lot into Lots Nos. 163-A to 163-H, for which separate transfer certificates of title were issued to the respective parties (Rollo, ibid). On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco (Jacinto, Julian and Paulina) filed with the lower court an amended complaint claiming that Lot No. 163 together with Lots Nos. 669, 1346 and 154 were owned by their common father, Lupo Mariategui, and that, with the adjudication of Lot No. 163 to their co-heirs, they (children of the third marriage) were deprived of their respective shares in the lots. Plaintiffs pray for partition of the estate of their deceased father and annulment of the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were impleaded in the complaint as unwilling defendants as they would not like to join the suit as plaintiffs although they acknowledged the status and rights of the plaintiffs and agreed to the partition of the parcels of land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4). The defendants (now petitioners) filed an answer with counterclaim (Amended Record on Appeal, p. 13). Thereafter, they filed a motion to dismiss on the grounds of lack of cause of action and prescription. They specifically contended that the complaint was one for recognition of natural children. On August 14, 1974, the motion to dismiss was denied by the trial court, in an order the dispositive portion of which reads: It is therefore the opinion of the Court that Articles 278 and 285 of the Civil Code cited by counsel for the defendants are of erroneous application to this case. The motion to dismiss is therefore denied for lack of merit. SO ORDERED. (Ibid, p. 37).

However, on February 16, 1977, the complaint as well as petitioners' counterclaim were dismissed by the trial court, in its decision stating thus: The plaintiffs' right to inherit depends upon the acknowledgment or recognition of their continuous enjoyment and possession of status of children of their supposed father. The evidence fails to sustain either premise, and it is clear that this action cannot be sustained. (Ibid, Rollo, pp. 67-68) The plaintiffs elevated the case to the Court of Appeals on the ground that the trial court committed an error ". . . in not finding that the parents of the appellants, Lupo Mariategui and Felipa Velasco (were) lawfully married, and in holding (that) they (appellants) are not legitimate children of their said parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 14-15). On December 24, 1980, the Court of Appeals rendered a decision declaring all the children and descendants of Lupo Mariategui, including appellants Jacinto, Julian and Paulina (children of the third marriage) as entitled to equal shares in the estate of Lupo Mariategui; directing the adjudicatees in the extrajudicial partition of real properties who eventually acquired transfer certificates of title thereto, to execute deeds of reconveyance in favor, and for the shares, of Jacinto, Julian and Paulina provided rights of innocent third persons are not prejudiced otherwise the said adjudicatees shall reimburse the said heirs the fair market value of their shares; and directing all the parties to submit to the lower court a project of partition in the net estate of Lupo Mariategui after payment of taxes, other government charges and outstanding legal obligations. The defendants-appellees filed a motion for reconsideration of said decision but it was denied for lack of merit. Hence, this petition which was given due course by the court on December 7, 1981. The petitioners submit to the Court the following issues: (a) whether or not prescription barred private respondents' right to demand the partition of the estate of Lupo Mariategui, and (b) whether or not the private respondents, who belatedly filed the action for recognition, were able to prove their successional rights over said estate. The resolution of these issues hinges, however, on the resolution of the preliminary matter, i.e., the nature of the complaint filed by the private respondents. The complaint alleged, among other things, that "plaintiffs are the children of the deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly acknowledged and confirmed plaintiffs as his children and the latter, in turn, have continuously enjoyed such status since their birth"; and "on the basis of their relationship to the deceased Lupo Mariategui and in accordance with the law on intestate succession, plaintiffs are entitled to inherit shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be declared as children and heirs of Lupo Mariategui and adjudication in favor of plaintiffs their lawful shares in the estate of the decedent (Ibid, p. 10). A perusal of the entire allegations of the complaint, however, shows that the action is principally one of partition. The allegation with respect to the status of the private respondents was raised only collaterally to assert their rights in the estate of the deceased. Hence, the Court of Appeals

correctly adopted the settled rule that the nature of an action filed in court is determined by the facts alleged in the complaint constituting the cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]). It has been held that, if the relief demanded is not the proper one which may be granted under the law, it does not characterize or determine the nature of plaintiffs' action, and the relief to which plaintiff is entitled based on the facts alleged by him in his complaint, although it is not the relief demanded, is what determines the nature of the action (1 Moran, p. 127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120). With respect to the legal basis of private respondents' demand for partition of the estate of Lupo Mariategui, the Court of Appeals aptly held that the private respondents are legitimate children of the deceased. Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or about 1930. This fact is based on the declaration communicated by Lupo Mariategui to Jacinto who testified that "when (his) father was still living, he was able to mention to (him) that he and (his) mother were able to get married before a Justice of the Peace of Taguig, Rizal." The spouses deported themselves as husband and wife, and were known in the community to be such. Although no marriage certificate was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present (People vs. Borromeo, 133 SCRA 106 [1984]). Under these circumstances, a marriage may be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and that things have happened according to the ordinary course of nature and the ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of Appeals, 135 SCRA 439 [1985]). Courts look upon the presumption of marriage with great favor as it is founded on the following rationale: The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to that case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).

So much so that once a man and a woman have lived as husband and wife and such relationship is not denied nor contradicted, the presumption of their being married must be admitted as a fact (Alavado v. City Gov't. of Tacloban, supra). The Civil Code provides for the manner under which legitimate filiation may be proven. However, considering the effectivity of the Family Code of the Philippines, the case at bar must be decided under a new if not entirely dissimilar set of rules because the parties have been overtaken by events, to use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family Code, there are only two classes of children legitimate and illegitimate. The fine distinctions among various types of illegitimate children have been eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]). Article 172 of the said Code provides that the filiation of legitimate children may be established by the record of birth appearing in the civil register or a final judgment or by the open and continuous possession of the status of a legitimate child. Evidence on record proves the legitimate filiation of the private respondents. Jacinto's birth certificate is a record of birth referred to in the said article. Again, no evidence which tends to disprove facts contained therein was adduced before the lower court. In the case of the two other private respondents, Julian and Paulina, they may not have presented in evidence any of the documents required by Article 172 but they continuously enjoyed the status of children of Lupo Mariategui in the same manner as their brother Jacinto. While the trial court found Jacinto's testimonies to be inconsequential and lacking in substance as to certain dates and names of relatives with whom their family resided, these are but minor details. The nagging fact is that for a considerable length of time and despite the death of Felipa in 1941, the private respondents and Lupo lived together until Lupo's death in 1953. It should be noted that even the trial court mentioned in its decision the admission made in the affidavit of Cresenciana Mariategui Abas, one of the petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay pawang mga kapatid ko sa ama . . ." (Exh. M, Record on Appeal, pp. 65-66). In view of the foregoing, there can be no other conclusion than that private respondents are legitimate children and heirs of Lupo Mariategui and therefore, the time limitation prescribed in Article 285 for filing an action for recognition is inapplicable to this case. Corollarily, prescription does not run against private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).

Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is

imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action for partition may be seen to be at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]). Petitioners contend that they have repudiated the co-ownership when they executed the extrajudicial partition excluding the private respondents and registered the properties in their own names (Petition, p. 16; Rollo, p. 20). However, no valid repudiation was made by petitioners to the prejudice of private respondents. Assuming petitioners' registration of the subject lot in 1971 was an act of repudiation of the co-ownership, prescription had not yet set in when private respondents filed in 1973 the present action for partition (Ceniza vs. C.A., 181 SCRA 552 [1990]). In their complaint, private respondents averred that in spite of their demands, petitioners, except the unwilling defendants in the lower court, failed and refused to acknowledge and convey their lawful shares in the estate of their father (Record on Appeal, p. 6). This allegation, though denied by the petitioners in their answer (Ibid, p. 14), was never successfully refuted by them. Put differently, in spite of petitioners' undisputed knowledge of their relationship to private respondents who are therefore their co-heirs, petitioners fraudulently withheld private respondent's share in the estate of Lupo Mariategui. According to respondent Jacinto, since 1962, he had been inquiring from petitioner Maria del Rosario about their (respondents) share in the property left by their deceased father and had been assured by the latter (Maria del Rosario) not to worry because they will get some shares. As a matter of fact, sometime in 1969, Jacinto constructed a house where he now resides on Lot No. 163 without any complaint from petitioners. Petitioners' registration of the properties in their names in 1971 did not operate as a valid repudiation of the co-ownership. In Adille vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held: Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the co-ownership). The act of repudiation, in turn, is subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has been in possession through open, continuous, exclusive, and notorious possession of the property for the period required by law. xxx xxx xxx

It is true that registration under the Torrens system is constructive notice of title, but it has likewise been our holding that the Torrens title does not furnish shield for fraud. It is therefore no argument to say that the act of registration is equivalent to notice of repudiation, assuming there was one, notwithstanding the long-standing rule that registration operates as a universal notice of title.

Inasmuch as petitioners registered the properties in their names in fraud of their co-heirs prescription can only be deemed to have commenced from the time private respondents discovered the petitioners' act of defraudation (Adille vs. Court of Appeals, supra). Hence, prescription definitely may not be invoked by petitioners because private respondents commenced the instant action barely two months after learning that petitioners had registered in their names the lots involved. WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals dated December 24, 1980 is Affirmed. SO ORDERED. THIRD DIVISION [A M. No. P-94-1054. March 11, 2003] EDWIN A. ACEBEDO, petitioner, vs. EDDIE P. ARQUERO, respondent. DECISION CARPIO MORALES, J.: By letter-complaint[1] dated June 1, 1994, Edwin A. Acebedo charged Eddie P. Arquero, Process Server of the Municipal Trial Court (MTC) of Brookes Point, Palawan for immorality. Complainant alleged that his wife, Dedje Irader Acebedo, a former stenographer of the MTC Brookes Point, and respondent unlawfully and scandalously cohabited as husband and wife at Bancudo Pulot, Brookes Point, Palawan as a result of which a girl, Desiree May Irader Arquero, was born to the two on May 21, 1989. Attached to the letter-complaint was the girls Baptismal Certificate[2] reflecting the names of respondent and Dedje Irader as her parents. Also attached to the letter-complainant was a copy of a marriage contract[3] showing that complainant and Dedje Irader contracted marriage on July 10, 1979. By Resolution of September 7, 1994, this Court required respondent to file an answer to the complaint.[4] By his Answer[5] of October 6, 1994, respondent vehemently denied the charge of immorality, claiming that it is just a (sic) mere harassment and a product of complainants hatred and extreme jealousy to (sic) his wife.[6] Attached to the answer were the September 27, 1987 affidavit of desistance[7] executed by complainant in favor of his wife with respect to an administrative complaint he had much earlier filed against her, and complainants sworn statement[8] dated September 13, 1994 acknowledging paternity of a child born out of wedlock, which documents, respondent claims, support his contention that the complaint filed against him is but a malicious scheme concocted by complainant to harass him. Additionally, respondent claimed that sometime in 1991, complainant likewise instituted a criminal complaint against him for adultery which was, however, dismissed after preliminary investigation.

Finally, respondent claimed that complainant himself had been cohabiting with another woman. By Resolution of February 6, 1995, this Court referred the case to then Executive Judge Filomeno A. Vergara of the Regional Trial Court of Puerto Princesa, Palawan for investigation, report and recommendation.[9] Judge Vergara having retired during the pendency of the investigation, the case was referred to Executive Judge Nelia Y. Fernandez who was, by Resolution of August 16, 2000, directed by this Court to (1) verify the authenticity of the marriage certificate and baptismal certificate submitted by complainant; (2) conduct an investigation as to the information contained in the said baptismal certificate and the circumstances under which it was issued, and such other verifiable matters relevant to the charge; and (3) submit her report and recommendation thereon.[10] In her Investigation Report of February 12, 2001, Judge Fernandez recommends that the complaint be dismissed for failure to adduce adequate evidence to show that respondent is guilty of the charge.[11] The report focuses on the non-appearance of complainant and Dedje Irader Acebedo, thusly: xxx Having appeared that the complainant Edwin Acebedo and Dedjie Irader who per reliable information cannot be notified for reason that subject persons are no longer residing in their given address and their whereabouts is unknown as shown by the return of the subpoena dated November 7, 2000, and the inadmissibility of the baptismal certificate alleging therein that the father of Desiree Arquero is the respondent herein, and for the reason that the same had not been testified to by Dedje Irader who is the informant of the entries contained therein, this Court had not received adequate proof or relevant evidence to support a conclusion that respondent herein could be held liable of the charge imputed against him, hence, he should be absolved from any liability.

x x x[12] (Quoted verbatim). By Resolution of April 25, 2001, this Court referred the case to the Office of the Court Administrator (OCA) for evaluation, report and recommendation. By Memorandum of December 12, 2001, the OCA, disagreeing with the recommendation of the Investigating Judge that the case should be dismissed, recommends that respondent be held guilty of immorality and that he be suspended from office for a period of one (1) year without pay.[13] Thus the OCA ratiocinates: . . . [R]espondent admitted the fact that for eight (8) to nine (9) months, he a single man maintained relations with Dedje Irader Acebedo, wife of herein complainant, attended with sexual union (TSN dated 23 November 2000, pp. 14-15). Based on his testimony, we observed that respondent justified his having a relationship with Dedje I. Acebedo solely on the written document purportedly a Kasunduan or agreement entered into by complainant and his wife, consenting to and giving freedom to either of them to seek any partner and to live with him

or her. Being a court employee respondent should have known that said agreement was void despite it having been notarized. Even granting that Dedjie I. Acebedo was separated from her husband during their short lived relation, to hold on to said scandalous agreement and enter an immoral relationship with a very much married woman and a co-court-employee at that is highly improper. It is contrary to the Code of Conduct and Ethical Standards of Public Officials and Employees which provides that public employees of which respondent is one, xxx shall at times (sic) respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. Moreover, respondent cannot seek refuge and sling mud at complainant for having executed an Affidavit dated September 13, 1994, acknowledging that he bore a woman other than his wife, a child. It would seem that respondent would want to apply the principle of in pari delicto in the instant case. Respondent would have it appear that a married man with an extra-marital relation and an illegitimate child is precluded from complaining if his wife enters into a relationship with another man. Second, the records show that an Affidavit of Desistance was executed by herein complainant. However, a cursory reading of said document reveals that it favors only Dedje Irader Acebedo and not herein respondent. Interestingly, the date of said affidavit is 2 September 1987. Respondent had the temerity to claim it as evidence in his favor when the instant complaint was only filed sometime in 1994. Third, when respondent was asked by the investigating judge if he attended the baptism of the daughter of Dedje Irader Acebedo, his former co-employee and ex-intimate friend, he answered, I did not. Im not sure the child is mine. From his answer, we could infer that respondent did not categorically rule out the possibility that said child might be her (sic) daughter, only that he is doubtful of her paternity. x x x[14] (Emphasis supplied; underscoring in the original). While complainant appears to have lost interest in the prosecution of the present case, the same does not ipso facto warrant its dismissal. Once administrative charges have been filed, this Court may not be divested of its jurisdiction to investigate and ascertain the truth thereof.[15] For it has an interest in the conduct of those in the service of the Judiciary and in improving the delivery of justice to the people, and its efforts in that direction may not be derailed by the complainants desistance from prosecuting the case he initiated.[16] On the merits of the case, the entry of respondents name as father in the baptismal certificate of Desiree May I. Arquero cannot be used to prove her filiation and, therefore, cannot be availed of to imply that respondent maintained illicit relations with Dedje Irader Acebedo. A canonical certificate is conclusive proof only of the baptism administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained therein which concern the relationship of the person baptized.[17] It merely attests to the fact which gave rise to its issue, and the date thereof, to wit, the fact of the administration of the sacrament on the date stated, but not the truth of the statements therein as to the parentage of the child baptized.[18]

By respondents own admission, however, he had an illicit relationship with complainants wife: Q: During the formal offer of the possible nature of your testimony before the Court by your counsel, did the Court get it correct that there has been a short lived relation between you and Dedgie Irader, am I correct in my impression? A: During that time that I have heard she and her husband have parted ways already, I jokingly informed her that she is now being separated, she is now single and is free to have some commitment. So, I courted her and she accepted me, so we have a short lived relation and after that we parted ways. Q: For how long was this short lived relation you made mention a while ago? A: May be (sic) about eight (8) to nine (9) months.

Q: When you said you have (sic) a short lived relationship from 8 to 9 months, you mean to tell the Court that you have (sic) a sexual union with this woman? A: Yes maam.[19] (Emphasis and underscoring supplied).

Respondent justified his pursuing a relationship with complainants wife with the spouses having priorly entered into a settlement with respect to their marriage which was embodied in a Kasunduan, the pertinent portions of which are reproduced hereunder: Kami, EDWIN AGUINALDO ACEBEDO at DEDJE IRADER ACEBEDO, may sapat na taong gulang, mag-asawa, Pilipino, at kasalukuyang nakatira sa Poblacion, Brokes (sic) Point, Palawan, ay malayang nagkasundo ng mga sumusunod: 1. Na, yayamang hindi kami magkasundo bilang mag-asawa, at magiging miserable lamang ang aming mga buhay kung aming ipagpapatuloy pa ang aming pagsasama bilang mag-asawa, kami ay malayang nagkasundo ngayon na maghiwalay na bilang mag-asawa, at ang bawat isa sa amin ay may kalayaan na humanap na ng kaniyang makakasama sa buhay bilang asawa at hindi kami maghahabol sa isat isa sa alin pa mang hukuman; x x x[20] (Italics supplied). Respondents justification fails. Being an employee of the judiciary, respondent ought to have known that the Kasunduan had absolutely no force and effect on the validity of the marriage between complainant and his wife. Article 1 of the Family Code provides that marriage is an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation. It is an institution of public order or policy, governed by rules established by law which cannot be made inoperative by the stipulation of the parties.[21] Republic Act 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, enunciates the States policy of promoting a high standard of ethics and utmost responsibility in the public service.[22]

Although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary.[23] That is why this Court has firmly laid down exacting standards of morality and decency expected of those in the service of the judiciary.[24] Their conduct, not to mention behavior, is circumscribed with the heavy burden of responsibility,[25] characterized by, among other things, propriety and decorum so as to earn and keep the publics respect and confidence in the judicial service.[26] It must be free from any whiff of impropriety, not only with respect to their duties in the judicial branch but also to their behavior outside the court as private individuals.[27] There is no dichotomy of morality; court employees are also judged by their private morals.[28] Respondents act of having illicit relations with complainants wife is, within the purview of Section 46 (5) of Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, a disgraceful and immoral conduct.

Under Rule IV, Section 52A (15) of the Revised Uniform Rules on Administrative Cases in the Civil Service, an immoral conduct is classified as a grave offense which calls for a penalty of suspension for six (6) months and one (1) day to one (1) year for the first offense, and dismissal is imposed for the second offense. Since the present charge of immorality against respondent constitutes his first offense, his suspension for six (6) months and one (1) day is in order. WHEREFORE, this Court finds respondent Eddie P. Arquero, Process Server of the Municipal Trial Court of Brookes Point, Palawan, GUILTY of immorality, for which he is hereby SUSPENDED for six (6) months and one (1) day without pay with a STERN WARNING that commission of the same or similar acts shall be dealt with severely. Let a copy of this decision be filed in the personal record of respondent. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-39381

July 18, 1975

FELISA LIM, petitioner, vs. COURT OF APPEALS and GUADALUPE ENRIQUEZ UY, respondents.

G.R. No. L-39033

July 18, 1975

GUADALUPE ENRIQUEZ UY, petitioner, vs. COURT OF APPEALS and FELISA LIM, respondents. Juanito R. Sagun for Felisa Lim. Pedro G. Uy and Francisco D. Bacabac for Guadalupe Enriquez Uy.

CASTRO, J.: These two petitions for certiorari were separately filed by Felisa Lim and Guadalupe Enriquez Uy to review the decision dated June 6, 1974 of the Court of Appeals, and the resolutions dated September 12, 1974 and July 18, 1974 of the same court denying their respective motions for reconsideration. We affirm the judgment of the Court of Appeals. In 1962 Felisa Lim brought suit against Francisco Miguel Romualdez Uy Chen Hong in the Court of First Instance of Manila for (1) declaration of nullity of the affidavit Uy executed in which he adjudicated to himself, as the only son and heir of Susana Lim, a lot (120 square meters) with the house thereon located at Tayabas St., Sta. Cruz, Manila; (2) cancellation of the certificate of title issued in the name of Uy; and (3) issuance of a new transfer certificate of title in her favor. Both Uy and Felisa Lim claimed they inherited, to the exclusion of each other, the property in question from Susana Lim. Felisa Lim claims to be the natural daughter of Susana Lim. To support her claim, she presented (1) her certificate of baptism, which certificate states that Felisa Lim is the natural daughter of Susana Lim; and (2) her marriage contract, which contract states that Susana Lim gave consent to Felisa Lim's mother. Felisa Lim also alleges continuous possession of the status of a natural child. On the other hand, Uy claimed to be the only son and heir of Susana Lim. To support his claim, he presented, among others, (1) his application for alien registration in the Bureau of Immigration, which application names Susana Lim as Uy's mother; (2) the order of the Bureau of Immigration cancelling his alien registration, which order describes Uy as a Filipino citizen by derivation from his mother Susana Lim; and (3) his identification certificate issued by the Bureau of Immigration, which certificate likewise describes Uy as a citizen of the Philippines by derivation from his mother Susana Lim. On November 22, 1967 the court a quo, after finding Felisa Lim as "the daughter and only heir" of Susana Lim, rendered judgment declaring the affidavit executed by Uy null and void, and ordering the Register of Deeds of Manila (1) to cancel the registration of the said affidavit, (2) to

cancel the certificate of title in the name of Uy, and (3) to issue a new transfer certificate of title in favor of Felisa Lim. Uy then moved for reconsideration of the aforesaid decision and asked for new trial on the ground of newly discovered evidence. This motion for reconsideration and new trial the court a quo denied. Uy appealed to the Court of Appeals. 1 On June 6, 1974 the appellate court reversed the judgment dated November 22, 1967 of the court a quo and dismissed the complaint. The appellate court ruled that neither Felisa Lim nor Uy "is entitled to the inheritance because neither of them had been recognized by Susana Lim as her child by any of the means provided for by law; and neither had either of them been declared in a judicial proceeding to be a child of Susana Lim." Both parties' subsequent respective motions for reconsideration were denied. Hence the present recourse by both parties against the judgement dated June 6, 1974 of the appellate court as well its resolutions dated September 12,1974 and July 18, 1974 denying their respective motions for reconsideration. In L-39381, Felisa Lim assails the finding of the appellate court that she "has no right to inherit from Susana Lim, even on the assumption that she is her natural daughter, as she had not been recognized by any of the means provided for by the New Civil Code." Felisa Lim alleges that Susana Lim's consent to her marriage, given pursuant to Act 3613 (The Marriage Law), amounted to an admission and recognition on the part of Susana Lim that she (Felisa) is her natural daughter. Felisa Lim adds that the records in the office of the Local Civil Registrar pertaining to her marriage license, "together with the supporting papers which included the consent given by Susana Lim, were destroyed during the liberation of the City of Manila." However, that Susana Lim gave consent to her marriage, Felisa Lim asserts, the marriage contract evinces. Felisa Lim states that the marriage contract partakes of a public document and thus fulfills the provisions of the old Civil Code (re recognition "in some other public document") and the new Civil Code (re recognition "in any authentic writing"). In L-39033, Guadalupe Enriquez Uy takes exception to the appellate court's non-adjudication of the property in question in favor of her husband. The finding of the appellate court that her husband "is not likewise entitled to inherit from Susana Lim" makes no difference, she states, for her husband purchased the property in question "with his own money prior to his mother's death and took conveyance and title thereof" in his mother's name in deference to her since "she gave him a little amount to complete the purchase price." L-39381 At the outset, it should be noted that Felisa Lim claims that her recognition by Susana Lim as her (the latter's) natural child took place in 1943. Since the recognition allegedly took place during the effectivity of the Civil Code of 1889, such recognition should be reckoned in accordance with the requisites established by the said Civil Code. For, the law in force at the time of the recognition governs the act of recognition.

Section 131 of the Civil Code of 1889 requires that the recognition of a natural child "be made in the record of birth, in a will, or in some other public document." Felisa Lim argues that her marriage contract partakes of a public document. According to article 1216 of the Civil Code of 1889, public documents "are those authenticated by a notary or by a competent public official, with the formalities required by law." Thus, "there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office." 2 "The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." 3 The marriage contract presented by Felisa Lim does not satisfy the requirements of solemnity prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the intervention of a notary; it is not an instrument executed in due form before a notary and certified by him. The marriage contract is a mere declaration by the contracting parties, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife, signed by signature or mark by the said contracting parties and the said witnesses, and attested by the person solemnizing the marriage. The marriage contract does not possess the requisites of a public document of recognition. Be it remembered that recognition, under the Civil Code of 1889, "must be precise, express and solemn." 4 L-39033 Uy claims that her husband purchased the property in question with his own money prior to Susana Lim's death but took conveyance thereof in her name. In the circumstances, she alleges, an implied trust exists in favor of her husband. She questions the statement made by the appellate court in its resolution dated July 18, 1974 denying her motion for reconsideration, which statement reads: "The title is in the name of Susana Lim, and oral testimony cannot overcome the fact that the sale was made to Susana Lim and title issued in her favor." An implied trust arises "where a person purchases land with his own money and takes conveyance thereof in the name of another. In such a case, the property is held on a resulting trust in favor of the one furnishing the consideration for the transfer, unless a different intention or understanding appears. The trust which results under such circumstances does not arise from contract or agreement of the parties, but from the facts and circumstances, that is to say, it results because of equity and arises by implication or operation of law." 5 To support her allegation regarding the existence of an implied trust, Uy presented excerpts from the respective testimonies of her deceased husband, her husband's half-brother, and the former owner of the property in question. These testimonies, as excerpted, tend to prove (1) that the deceased Uy received a P10,000 legacy from his father; (2) that he purchased the property in question; and (3) that the name of Susana Lim appeared on the deed of sale. It is thus asserted that the deceased Uy furnished the consideration, although he asked Susana Lim for a little amount to complete the purchases price of the property in question, and that

having supplied the greater portion of the purchase money, he intended the purchase for his own benefit. It is our view that two countervailing circumstances militate against Uy's theory of an implied trust in favor of her husband. (1) Uy raised the theory of implied trust for the first time in her motion for reconsideration filed with the appellate court; (2) the evidence regarding the alleged purchase by her late husband is altogether unconvincing. ACCORDINGLY, the judgment appealed from is affirmed. No costs. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 109144

August 19, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MORENO L. TUMIMPAD, accused-appellant. The Solicitor General for plaintiff-appellee. Miguel M. Lingating for accused-appellant.

KAPUNAN, J.: Accused-appellant Constable Moreno L. Tumimpad and co-accused Constable Ruel C. Prieto were charged with the crime of rape committed against a 15-year old Mongoloid child in a complaint dated on May 24, 1991, signed by her mother, Mrs. Pastora L. Salcedo, which reads: That during the period between the last week of March 1989 and the first week of April 1989, in Barangay Lower Lamac, Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there, wilfully, unlawfully and feloniously, have (sic) carnal knowledge with Sandra Salcedo, complainant's daughter, a woman who is a mongoloid and so weak of mind and in intellect as to be capable of giving rational and legal consent. 1 Upon arraignment, accused-appellant pleaded not guilty to the crime charged and due trial ensued.

The facts as established by evidence are as follows: Sandra Salcedo at the time of the incident was a 15-year old Mongoloid and daughter of Lt. Col. Teofisto Salcedo and Pastora Salcedo. She had a mind of a five-year old child, who still needed to be fed and dressed up. Her vocabulary was limited and most of the time she expressed herself by motions. Col. Teofisto Salcedo was then Provincial Commander of Misamis Occidental. Four security men were assigned to him, two of whom were accused Constable Ruel Prieto and accusedappellant Moreno Tumimpad. The Salcedo family, composed of Col. Salcedo, his wife Pastora, his son Alexander and wife and daughter Sandra, lived in a two-storey officers' quarters inside Camp Lucas Naranjo, Provincial Headquarters, in Oroquieta City. The upper storey of the house was occupied by Col. Salcedo, his wife and Sandra while the lower storey had two (2) rooms, one of which was occupied by the four security men and the other by Alexander Salcedo and his wife. It was on August 7, 1989, when Sandra complained of constipation. Mrs. Salcedo then brought her to a doctor in Oroquieta City for a checkup. Medication was given to Sandra but her condition did not improve. Sandra became irritable and moody. She felt sick and unhappy. The following day, August 8, 1989, Sandra saw Moreno Tumimpad coming out from the kitchen and told her mother, "Mama, patayin mo 'yan, bastos." 2 Mrs. Pastora Salcedo, worried of her daughter's condition, brought her to Regina Hospital. Sandra was able to relieve herself the following day but still remained moody and irritable. She refused to take a bath in spite of scoldings from her mother. She did not want to eat and whenever she did, she would vomit. Sandra was brought to a doctor in Oroquieta City for a second checkup. Dr. Conol, the examining physician, ordered a urinalysis. Jose C. Lim, a Medical Technologist, conducted the urinalysis. The result revealed that Sandra was pregnant. 3 Mrs. Pastora Salcedo could not believe that her daughter was pregnant and so she brought Sandra to Madonna and Child Hospital in Cagayan de Oro City. Dr. Kho, and OB-GYNE Specialist, examined Sandra and subjected her to a pelvic ultra-sound examination. The results were positive. The fetus' gestational age was equivalent to 17.1 weeks. 4 Another ultra-sound examination at the United Doctors Medical Center (UDMC) at Quezon City on September 11, 1989 confirmed that she was indeed pregnant. 5 On January 11, 1990, Sandra gave birth to a baby boy who was named Jacob Salcedo. Hence, the filing of the complaint 6 by Mrs. Pastora Salcedo. During the investigation conducted by the CIS, about thirty (30) pictures of different persons were laid on the table and Sandra was asked to pick up the pictures of her assailants. Sandra singled out the pictures of Moreno Tumimpad and Ruel Prieto. 7 Later, Sandra was brought out of the investigation room to a police line-up of ten people, including Moreno Tumimpad and

Ruel Prieto. She was again asked to point to her assailants. Without hesitation, Sandra fingered Moreno Tumimpad and Ruel Prieto. 8 Mrs. Pastora Salcedo testified that she requested her two daughters-in-law, Joy Salcedo and Celsa Salcedo, to ask Sandra the identity of the persons who sexually molested her. 9 Joy confirmed in her testimony that she asked Sandra who sexually molested her. Sandra revealed that Moreno Tumimpad and Ruel Prieto were the ones who raped her. Sandra demonstrated how she was raped. First, her thighs were touched, then she was hugged and her panty was taken off. A push and pull movement followed. 10 Celsa testified that she was present when the victim demonstrated how she was sexually abused by the two accused, including the way her nipples were touched saying "dito hawak," and holding her breasts to emphasize. She likewise went through the motion of removing her panty, uttering at the same time "hubad panty." Sandra identified in open court accused Moreno Tumimpad and Ruel Prieto as the persons who raped her and said she wished them dead, as they did something bad to her. 11 She once again demonstrated how she was sexually abused. She held her two thighs with her two hands next to her sexual organ saying, "panty" and then placed her hand on her breast and gestured as if she were sucking. She also touched her private organ and made a push and pull movement. 12 During the trial, the accused moved that a blood test, both "Major Blood Grouping Test" and "Pheno Blood Typing" be conducted on the offended party, her child Jacob and the two accused. The result of the test conducted by the Makati Medical Center showed that Jacob Salcedo has a type "O" blood, Sandra Salcedo type "B", accused Ruel Prieto type "A" and accused-appellant type "O". Both accused anchored their defense on mere denial contending that it was impossible for them to have committed the crime of rape. After trial on the merits, the trial court convicted Moreno Tumimpad of the crime charged but acquitted the other accused, Ruel Prieto, on reasonable doubt, stating that he "has a different type of blood with (sic) the child Jacob Salcedo as his type of blood is "A", while that of child Jacob Salcedo is type "O". The dispositive portion of the decision reads: WHEREFORE, premises considered, the Court finds the accused, PO1 Moreno Tumimpad, guilty beyond reasonable doubt of the crime of Rape, as charged in the information, and pursuant to the provisions of Article 335 of the Revised Penal Code, as amended, there being no aggravating nor mitigating circumstance attendant in the commission of the crime, said accused Moreno Tumimpad is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; to indemnify the offended girl, Sandra Salcedo, in the amount of P20,000.00; and to suffer the other accessory penalties provided for by laws; and to pay the costs of the proceedings.

On reasonable doubt, accused Ruel Prieto is hereby declared ACQUITTED from the charge. SO ORDERED. 13 Accused-appellant assigns the following as errors of the lower court: 1. The lower court erred in not appreciating the impossibility of committing the offense charged without detection. 2. The lower court erred in convicting the accused-appellant base on major blood grouping test known as ABO and RHS test, not a paternal test known as chromosomes or HLA test. The appeal is devoid of merit. Accused-appellant argues that it was impossible for him to have committed the crime of rape because most of the time he and his co-accused Ruel Prieto were together with Col. Salcedo on inspection tours while the victim was always in the company of her mother. He further contends that it was likewise impossible for Sandra, if she had really been molested, not to have shouted out of pain, she being a virgin. As if adding insult to injury, accused-appellant suggests that it was Sandra's brother, Cristopher Salcedo, allegedly a drug user, who could have raped her. We are not convinced. It is true that the accused usually went with Col. Salcedo during inspection tours but sometimes they were left behind and would play pingpong or card games with Sandra at the ground floor of the house. While Sandra was always with her mother, there were times when she was left alone in the house with the accused. 14 Mrs. Pastora Salcedo testified: Q A Q A Q How many security men remain if you can recall when your husband reported for work? Two (2). Who were these security men who remained? Moreno Tumimpad and Ruel Prieto. How about the 2 other security men Tanggan and Colaljo?

A My husband sent (sic) them for an errand and sometime they used to go with my husband to the office. Q Every time when your husband is out what they do while they were (sic) at the headquarter?

A I saw them sleeping and sometime they were playing at the porch with my daughter Sandra playing pingpong and sometime they were listening music. Q A xxx Where did they play usually take place? Living room. 15 xxx xxx

Q By the say, (sic) Mrs. Salcedo, you said a while ago when you were at the headquarters you were able to do your choirs, (sic) doing laundry jobs in the second storey of your house. Do you know where is your daughter Sandra at that time? A Q A Q A Q A Yes, she spent her time at the second floor. What part of the ground floor she used (sic) to stay? Because she is found (sic) of music she stay in the living room. Did she has (sic) any playmates? Moreno and Prieto. Have you seen actually the 2 accused playing with your daughter? Yes, playing pingpong and playing cards. 16

The victim more than once positively identified accused-appellant Moreno Tumimpad as one of the perpetrators of the crime. First, during the investigation conducted by the CIS, Sandra singled out accused-appellant and his co-accused from among the thirty (30) pictures of different persons shown to her. Second, at the police lineup of several persons, likewise conducted by the CIS, Sandra once again unerringly pointed accused-appellant and his co-accused as the ones who raped her. Third, in open court, Sandra without hesitation, pointed to accused- appellant as the perpetrator of the crime. The following is the victim's own testimony: PROS. RAMOS: Will you please demonstrate before this Honorable Court what Moreno and Ruel did to you? RECORD: The witness when she stood up held both her thighs (sic) with her two hand (sic) down to her sexual organ saying a word "panty" and she placed her hand on her breast and did something as if sucking and held her private part (sic) and did a push and pull movement and she cried.

Q When you said that there was a push and pull movement of the body and when this was being done did you feel pain? A Q Yes pain. What part of your body is painful?

RECORD: The witness touching her private parts. Q A Q Did you also see blood on your sexual organ? Yes. Where did you see these blood?

RECORD: The witness touching her private parts. Q A Q A Q A Q A Q A Q A When this push and pull movement was being made, did you see a man's organ? Yes sir. Where did you see this male organ? Witness touching her private part. Who did this to you, who removed your panty? Moreno and Ruel. Did you see Moreno taking off his pants? Yes. Did you see his sex organ? The witness touching her private parts. How about this Ruel, did you see if he taken (sic) off his pants? Yes.

Q A Q A Q A Q A Q A Q A Q A Q

Did you see his sex organ? Yes, witness again touching her private part. Both of them? Yes. Where did Moreno and Ruel removed (sic) your panty? Moreno. In your house? Yes. What part of your house did Moreno and Ruel remove your panty? Downstairs Moreno and Ruel remove panty. What part of the ground floor, was it outside or inside the room? In the room. When (sic) Moreno and Ruel are inside the courtroom now, can you point to them? Yes. Will you please point to them?

PROS. RAMOS: May we request the accused to stand up your honor? RECORD: Both accused stood up from where they were sitting inside the courtroom. PROS. RAMOS: Who is that person (prosecutor Ramos point to accused Moreno Tumimpad)? A Moreno.

RECORD:

The witness pointing to a certain person who is standing and when asked what is his name, he readily answered that he is Moreno Tumimpad. PROS. RAMOS: Who is that person standing besides Moreno? A Joel.

PROS. RAMOS: If your honor please, she could not pronounced (sic) well the word Ruel but the way she called this name is Joel which refers to the same person who is one of the accused in this case. 17 Melinda Joy Salcedo, the victim's sister-in-law, testified that Sandra demonstrated to her how she was ravished by the two accused, thus: Q Now, will you please tell us what did Sandra Salcedo told (sic) you as to how she was abused? A By what she had stated there were also actions that she made.

Q Will you please demonstrate to this Honorable Court how did Sandra Salcedo was abused as narrated or demonstrated to you by Sandra Salcedo? A According to her she was held in her thigh and then she was hugged and then the panty was taken off and making a push and pull movement (witness demonstration by holding her thigh)? Q Now, after Sandra Salcedo told you and demonstrated to you how she was abused. What else did Sandra Salcedo tell you if she had told you any more matter? A Q A Q A She did not say anything more. Now, when Sandra Salcedo refused to talk or say anything else. What happened next? Then it was Celsa who asked her. Where were you when Celsa asked Sandra Salcedo? I was just beside her.

Q You said that after Sandra Salcedo refused to talk, Celsa did the questioning, did you hear the question being asked by Celsa to Sandra Salcedo? A Yes.

Q A Q A Q A

And what was the question being asked by Celsa to Sandra Salcedo? Celsa asked Sandra Salcedo as to what other things that these two had done to her? And what if any did Sandra Salcedo tell you as to what was done to her? By way of talking and action. And what was the answer of Sandra Salcedo? He (sic) answered it by action and talking.

Q And what was the answer of Sandra Salcedo as related by her to Celsa through words and action? RECORD: The witness demonstrated by holding his (sic) nipple going down to her thigh. Q A What else had transpired next? No more.

Q Now, whenever Sandra Salcedo mentioned the names of accused Moreno Tumimpad and Ruel Prieto, have you observed whose names was usually mentioned first by Sandra Salcedo? A Q A Q A She mentioned first the name of Moreno Tumimpad and Ruel. And what happened after that? I informed my mother-in-law of what Sandra Salcedo had told us. When did you tell your mother-in- law about what Sandra Salcedo told you and Celsa? That very evening sir. 18

Accused-appellant simplistically and quite erroneously argues that his conviction was based on the medical finding that he and the victim have the same blood type "O". Accused-appellants' culpability was established mainly by testimonial evidence given by the victim herself and her relatives. The blood test was adduced as evidence only to show that the alleged father or any one of many others of the same blood type may have been the father of the child. As held by this Court in Janice Marie Jao vs. Court of Appeals 19:

Paternity Science has demonstrated that by the analysis of blood samples of the mother, the child, and the alleged father, it can be established conclusively that the man is not the father of a particular child. But group blood testing cannot show only a possibility that he is. Statutes in many states, and courts in others, have recognized the value and the limitations of such tests. Some of the decisions have recognized the conclusive presumption of non-paternity where the results of the test, made in the prescribed manner, show the impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court may scientifically be completely accurate, and intolerable results avoided, such as have occurred where the finding is allowed to turn on oral testimony conflicting with the results of the test. The findings of such blood tests are not admissible to prove the fact of paternity as they show only a possibility that the alleged father or any one of many others with the same blood type may have been the father of the child. WHEREFORE, accused-appellant's guilt of the crime of rape having been proven beyond reasonable doubt, the decision appealed from is hereby AFFIRMED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 105625

January 24, 1994

MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR, respondents. Reynaldo M. Alcantara for petitioner. Augustus Cesar E. Azura for private respondents.

PUNO, J.: This is a petition for review of the Decision of the 12th Division of the Court of Appeals in CAG.R. No. CV No. 30862 dated May 29, 1992. 1 The facts show that the spouses Vicente Benitez and Isabel Chipongian owned various properties especially in Laguna. Isabel died on April 25, 1982. Vicente followed her in the grave on November 13, 1989. He died intestate.

The fight for administration of Vicente's estate ensued. On September 24, 1990, private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's sister and nephew, respectively) instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial Region, Br. 30. They prayed for the issuance of letters of administration of Vicente's estate in favor of private respondent Aguilar. They alleged, inter alia, viz.: xxx xxx xxx

4. The decedent is survived by no other heirs or relatives be they ascendants or descendants, whether legitimate, illegitimate or legally adopted; despite claims or representation to the contrary, petitioners can well and truly establish, given the chance to do so, that said decedent and his spouse Isabel Chipongian who pre-deceased him, and whose estate had earlier been settled extra-judicial, were without issue and/or without descendants whatsoever, and that one Marissa Benitez-Badua who was raised and cared by them since childhood is, in fact, not related to them by blood, nor legally adopted, and is therefore not a legal heir; . . . On November 2, 1990, petitioner opposed the petition. She alleged that she is the sole heir of the deceased Vicente Benitez and capable of administering his estate. The parties further exchanged reply and rejoinder to buttress their legal postures. The trial court then received evidence on the issue of petitioner's heirship to the estate of the deceased. Petitioner tried to prove that she is the only legitimate child of the spouses Vicente Benitez and Isabel Chipongian. She submitted documentary evidence, among others: (1) her Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate (Exh. 4); (3) Income Tax Returns and Information Sheet for Membership with the GSIS of the late Vicente naming her as his daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She also testified that the said spouses reared an continuously treated her as their legitimate daughter. On the other hand, private respondents tried to prove, mostly thru testimonial evidence, that the said spouses failed to beget a child during their marriage; that the late Isabel, then thirty six (36) years of age, was even referred to Dr. Constantino Manahan, a noted obstetrician-gynecologist, for treatment. Their primary witness, Victoria Benitez-Lirio, elder sister of the late Vicente, then 77 years of age, 2 categorically declared that petitioner was not the biological child of the said spouses who were unable to physically procreate. On December 17, 1990, the trial court decided in favor of the petitioner. It dismissed the private respondents petition for letters and administration and declared petitioner as the legitimate daughter and sole heir of the spouses Vicente O. Benitez and Isabel Chipongian. The trial court relied on Articles 166 and 170 of the Family Code. On appeal, however, the Decision of the trial court was reversed on May 29, 1992 by the 17th Division of the Court of Appeals. The dispositive portion of the Decision of the appellate court states: WHEREFORE, the decision appealed from herein is REVERSED and another one entered declaring that appellee Marissa Benitez is not the biological daughter or child by nature of the spouse Vicente O. Benitez and Isabel Chipongian and, therefore, not a legal heir of the deceased

Vicente O. Benitez. Her opposition to the petition for the appointment of an administrator of the intestate of the deceased Vicente O. Benitez is, consequently, DENIED; said petition and the proceedings already conducted therein reinstated; and the lower court is directed to proceed with the hearing of Special proceeding No. SP-797 (90) in accordance with law and the Rules. Costs against appellee. SO ORDERED. In juxtaposition, the appellate court held that the trial court erred in applying Articles 166 and 170 of the Family Code. In this petition for review, petitioner contends: 1. The Honorable Court of Appeals committed error of law and misapprehension of facts when it failed to apply the provisions, more particularly, Arts. 164, 166, 170 and 171 of the Family Code in this case and in adopting and upholding private respondent's theory that the instant case does not involve an action to impugn the legitimacy of a child; 2. Assuming arguendo that private respondents can question or impugn directly or indirectly, the legitimacy of Marissa's birth, still the respondent appellate Court committed grave abuse of discretion when it gave more weight to the testimonial evidence of witnesses of private respondents whose credibility and demeanor have not convinced the trial court of the truth and sincerity thereof, than the documentary and testimonial evidence of the now petitioner Marissa Benitez-Badua; 3. The Honorable Court of Appeals has decided the case in a way not in accord with law or with applicable decisions of the supreme Court, more particularly, on prescription or laches. We find no merit to the petition. Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code to the case at bench cannot be sustained. These articles provide: Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. Art. 166. Legitimacy of child may be impugned only on the following grounds:

1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a) the physical incapacity of the husband to have sexual intercourse with his wife;

b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or c) serious illness of the husband, which absolutely prevented sexual intercourse.

2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband except in the instance provided in the second paragraph of Article 164; or 3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, which ever is earlier. Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding Article only in the following case: 1) 2) 3) If the husband should die before the expiration of the period fixed for bringing his action; If he should die after the filing of the complaint, without having desisted therefrom; or If the child was born after the death of the husband.

A careful reading of the above articles will show that they do not contemplate a situation, like in the instant case, where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded

the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. For the case at bench is not one where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz.: Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of the Family Code] is not well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. We now come to the factual finding of the appellate court that petitioner was not the biological child or child of nature of the spouses Vicente Benitez and Isabel Chipongian. The appellate court exhaustively dissected the evidence of the parties as follows: . . . And on this issue, we are constrained to say that appellee's evidence is utterly insufficient to establish her biological and blood kinship with the aforesaid spouses, while the evidence on record is strong and convincing that she is not, but that said couple being childless and desirous as they were of having a child, the late Vicente O. Benitez took Marissa from somewhere while still a baby, and without he and his wife's legally adopting her treated, cared for, reared, considered, and loved her as their own true child, giving her the status as not so, such that she herself had believed that she was really their daughter and entitled to inherit from them as such. The strong and convincing evidence referred to us are the following: First, the evidence is very cogent and clear that Isabel Chipongian never became pregnant and, therefore, never delivered a child. Isabel's own only brother and sibling, Dr. Lino Chipongian, admitted that his sister had already been married for ten years and was already about 36 years old and still she has not begotten or still could not bear a child, so that he even had to refer her to the late Dr. Constantino Manahan, a well-known and eminent obstetrician-gynecologist and the OB of his mother and wife, who treated his sister for a number of years. There is likewise the testimony of the elder sister of the deceased Vicente O. Benitez, Victoria Benitez Lirio, who then, being a teacher, helped him (he being the only boy and the youngest of the children of their widowed mother) through law school, and whom Vicente and his wife highly respected and consulted on family matters, that her brother Vicente and his wife Isabel being childless, they wanted to adopt her youngest daughter and when she refused, they looked for a baby to adopt

elsewhere, that Vicente found two baby boys but Isabel wanted a baby girl as she feared a boy might grow up unruly and uncontrollable, and that Vicente finally brought home a baby girl and told his elder sister Victoria he would register the baby as his and his wife's child. Victoria Benitez Lirio was already 77 years old and too weak to travel and come to court in San Pablo City, so that the taking of her testimony by the presiding judge of the lower court had to be held at her residence in Paraaque, MM. Considering, her advanced age and weak physical condition at the time she testified in this case, Victoria Benitez Lirio's testimony is highly trustworthy and credible, for as one who may be called by her Creator at any time, she would hardly be interested in material things anymore and can be expected not to lie, especially under her oath as a witness. There were also several disinterested neighbors of the couple Vicente O. Benitez and Isabel Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado, and Benjamin C. Asendido) who testified in this case and declared that they used to see Isabel almost everyday especially as she had drugstore in the ground floor of her house, but they never saw her to have been pregnant, in 1954 (the year appellee Marissa Benitez was allegedly born, according to her birth certificate Exh. "3") or at any time at all, and that it is also true with the rest of their townmates. Ressureccion A. Tuico, Isabel Chipongian's personal beautician who used to set her hair once a week at her (Isabel's) residence, likewise declared that she did not see Isabel ever become pregnant, that she knows that Isabel never delivered a baby, and that when she saw the baby Marissa in her crib one day she went to Isabel's house to set the latter's hair, she was surprised and asked the latter where the baby came from, and "she told me that the child was brought by Atty. Benitez and told me not to tell about it" (p. 10, tsn, Nov. 29, 1990). The facts of a woman's becoming pregnant and growing big with child, as well as her delivering a baby, are matters that cannot be hidden from the public eye, and so is the fact that a woman never became pregnant and could not have, therefore, delivered a baby at all. Hence, if she is suddenly seen mothering and caring for a baby as if it were her own, especially at the rather late age of 36 (the age of Isabel Chipongian when appellee Marissa Benitez was allegedly born), we can be sure that she is not the true mother of that baby. Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez appearing as the informant, is highly questionable and suspicious. For if Vicente's wife Isabel, who wads already 36 years old at the time of the child's supposed birth, was truly the mother of that child, as reported by Vicente in her birth certificate, should the child not have been born in a hospital under the experienced, skillful and caring hands of Isabel's obstetrician-gynecologist Dr. Constantino Manahan, since delivery of a child at that late age by Isabel would have been difficult and quite risky to her health and even life? How come, then, that as appearing in appellee's birth certificate, Marissa was supposedly born at the Benitez home in Avenida Rizal, Nagcarlan, Laguna, with no physician or even a midwife attending? At this juncture, it might be meet to mention that it has become a practice in recent times for people who want to avoid the expense and trouble of a judicial adoption to simply register the child as their supposed child in the civil registry. Perhaps Atty. Benitez, though a lawyer himself, thought that he could avoid the trouble if not the expense of adopting the child Marissa through court proceedings by merely putting himself and his wife as the parents of the child in her birth certificate. Or perhaps he had intended to legally adopt the child when she grew a little older but did not come around doing so either because he was too busy or for some other reason. But

definitely, the mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts of simulation of the child's birth or falsification of his or her birth certificate, which is a public document. Third, if appellee Marissa Benitez is truly the real, biological daughter of the late Vicente O. Benitez and his wife Isabel Chipongian, why did he and Isabel's only brother and sibling Dr. Nilo Chipongian, after Isabel's death on April 25, 1982, state in the extrajudicial settlement Exh. "E" that they executed her estate, "that we are the sole heirs of the deceased ISABEL CHIPONGIAN because she died without descendants or ascendants?" Dr. Chipongian, placed on a witness stand by appellants, testified that it was his brother-in-law Atty. Vicente O. Benitez who prepared said document and that he signed the same only because the latter told him to do so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such a statement in said document, unless appellee Marissa Benitez is not really his and his wife's daughter and descendant and, therefore, not his deceased wife's legal heir? As for Dr. Chipongian, he lamely explained that he signed said document without understanding completely the meaning of the words "descendant and ascendant" (p. 21, tsn, Nov. 22, 1990). This we cannot believe, Dr. Chipongian being a practicing pediatrician who has even gone to the United States (p. 52, tsn, Dec. 13, 1990). Obviously, Dr. Chipongian was just trying to protect the interests of appellee, the foster-daughter of his deceased sister and brother-in-law, as against those of the latter's collateral blood relatives. Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really the daughter and only legal heir of the spouses Vicente O. Benitez and Isabel Chipongian, that the latter, before her death, would write a note to her husband and Marissa stating that: even without any legal papers, I wish that my husband and my child or only daughter will inherit what is legally my own property, in case I die without a will, and in the same handwritten note, she even implored her husband that any inheritance due him from my property when he die to make our own daughter his sole heir. This do [sic] not mean what he legally owns or his inherited property. I leave him to decide for himself regarding those. (Exhs. "F-1", "F-1-A" and "F-1-B") We say odd and strange, for if Marissa Benitez is really the daughter of the spouses Vicente O. Benitez and Isabel Chipongian, it would not have been necessary for Isabel to write and plead for the foregoing requests to her husband, since Marissa would be their legal heir by operation of law. Obviously, Isabel Chipongian had to implore and supplicate her husband to give appellee although without any legal papers her properties when she dies, and likewise for her husband to give Marissa the properties that he would inherit from her (Isabel), since she well knew that Marissa is not truly their daughter and could not be their legal heir unless her (Isabel's) husband makes her so.

Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio even testified that her brother Vicente gave the date December 8 as Marissa's birthday in her birth certificate because that date is the birthday of their (Victoria and Vicente's) mother. It is indeed too much of a coincidence for the child Marissa and the mother of Vicente and Victoria to have the same birthday unless it is true, as Victoria testified, that Marissa was only registered by Vicente as his and his wife's child and that they gave her the birth date of Vicente's mother. We sustain these findings as they are not unsupported by the evidence on record. The weight of these findings was not negated by documentary evidence presented by the petitioner, the most notable of which is her Certificate of Live Birth (Exh. "3") purportedly showing that her parents were the late Vicente Benitez and Isabel Chipongian. This Certificate registered on December 28, 1954 appears to have been signed by the deceased Vicente Benitez. Under Article 410 of the New Civil Code, however, "the books making up the Civil Registry and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein stated." As related above, the totality of contrary evidence, presented by the private respondents sufficiently rebutted the truth of the content of petitioner's Certificate of Live Birth. of said rebutting evidence, the most telling was the Deed of Extra-Judicial Settlement of the Estate of the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente Benitez, and Dr. Nilo Chipongian, a brother of Isabel. In their notarized document, they stated that "(they) are the sole heirs of the deceased Isabel Chipongian because she died without descendants or ascendants". In executing this Deed, Vicente Benitez effectively repudiated the Certificate of Live Birth of petitioner where it appeared that he was petitioner's father. The repudiation was made twenty-eight years after he signed petitioner's Certificate of Live Birth. IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 57227

May 14, 1992

AMELITA CONSTANTINO and MICHAEL CONSTANTINO, the latter represented herein by the former, his mother and natural guardian, petitioners, vs. IVAN MENDEZ and the HONORABLE COURT OF APPEALS, respondents.

Roberto M. Sarenas for petitioners. Bienvinido D. Cariaga for private respondent.

BIDIN, J.: This is a petition for review on certiorari questioning the decision 1 dated April 30, 1981 of the Court of Appeals in CA-G.R. No. 61552-R which dismissed petitioner's complaint and set aside the resolution 2 dated October 21, 1976 of the then Court of First Instance of Davao, 16th Judicial District, amending the dispositive portion of its decision dated June 21, 1976 and ordering private respondent Ivan Mendez: (1) to acknowledge the minor Michael Constantino as his illegitimate child; (2) to give a monthly support of P300.00 to the minor child; (3) to pay complainant Amelita Constantino the sum of P8,200.00 as actual and moral damages; and (4) to pay attorney's fees in the sum of P5,000 plus costs. It appears on record that on June 5, 1975, petitioner Amelita Constantino filed an action for acknowledgment, support and damages against private respondent Ivan Mendez. The case was filed with the then CFI of Davao, 10th Judicial District and docketed as Civil Case No. 8881. In her complaint, Amelita Constantino alleges, among others, that sometime in the month of August, 1974, she met Ivan Mendez at Tony's Restaurant located at Sta. Cruz, Manila, where she worked as a waitress; that the day following their first meeting, Ivan invited Amelita to dine with him at Hotel Enrico where he was billeted; that while dining, Ivan professed his love and courted Amelita; that Amelita asked for time to think about Ivan's proposal; that at about 11:00 o'clock in the evening, Amelita asked Ivan to bring her home to which the latter agreed, that on the pretext of getting something, Ivan brought Amelita inside his hotel room and through a promise of marriage succeeded in having sexual intercourse with the latter; that after the sexual contact, Ivan confessed to Amelita that he is a married man; that they repeated their sexual contact in the months of September and November, 1974, whenever Ivan is in Manila, as a result of which Amelita got pregnant; that her pleas for help and support fell on deaf ears; that Amelita had no sexual relations with any other man except Ivan who is the father of the child yet to be born at the time of the filing of the complaint; that because of her pregnancy, Amelita was forced to leave her work as a waitress; that Ivan is a prosperous businessman of Davao City with a monthly income of P5,000 to P8,000. As relief, Amelita prayed for the recognition of the unborn child, the payment of actual, moral and exemplary damages, attorney's fees plus costs. In his answer dated August 5, 1975, Ivan admitted that he met Amelita at Tony's Cocktail Lounge but denied having sexual knowledge or illicit relations with her. He prayed for the dismissal of the complaint for lack of cause of action. By way of counterclaim, he further prayed for the payment of exemplary damages and litigation expense including attorney's fees for the filing of the malicious complaint. On September 1, 1975, Amelita Constantino filed a motion for leave to amend the complaint impleading as co-plaintiff her son Michael Constantino who was born on August 3, 1975. In its order dated September 4, 1975, the trial court admitted the amended complaint.

On September 11, 1975, Ivan Mendez filed his answer to the amended complaint reiterating his previous answer denying that Michael Constantino is his illegitimate son. After hearing, the trial court rendered a decision dated June 21, 1976, the dispositive portion of which reads, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and against defendant Ivan Mendez, ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages; and, the sum of P3,000.00, as and by way of attorney's fees. The defendant shall pay the costs of this suit. SO ORDERED. From the above decision, both parties filed their separate motion for reconsideration. Ivan Mendez anchored his motion on the ground that the award of damages was not supported by evidence. Amelita Constantino, on the other hand, sought the recognition and support of her son Michael Constantino as the illegitimate son of Ivan Mendez. In its resolution dated October 21, 1976, the trial court granted Amelita Constantino's motion for reconsideration, and amended the dispositive portion of its decision dated June 21, 1976 to read as follows, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and plaintiff-minor Michael Constantino, and against defendant Ivan Mendez ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages and the sum of P200.00 as and by way of payment of the hospital and medical bills incurred during the delivery of plaintiff-minor Michael Constantino; to recognize as his own illegitimate child the plaintiff-minor Michael Constantino who shall be entitled to all the rights, privileges and benefits appertaining to a child of such status; to give a permanent monthly support in favor of plaintiff Michael Constantino the amount of P300.00; and the sum of P5,000.00 as and by way of attorney's fees. The defendant shall pay the costs of this suit. Let this Order form part of the decision dated June 21, 1976. SO ORDERED. On appeal to the Court of Appeals, the above amended decision was set aside and the complaint was dismissed. Hence, this petition for review. Basically, the issue to be resolved in the case at bar is whether or not the Court of Appeals committed a reversible error in setting aside the decision of the trial court and in dismissing the complaint. Petitioners contend that the Court of Appeals erred in reversing the factual findings of the trial and in not affirming the decision of the trial court. They also pointed out that the appellate court

committed a misapprehension of facts when it concluded that Ivan did not have sexual access with Amelita during the first or second week of November, 1976 (should be 1974), the time of the conception of the child. It must be stressed at the outset that factual findings of the trial court have only a persuasive and not a conclusive effect on the Court of Appeals. In the exercise of its appellate jurisdiction, it is the duty of the Court of Appeals to review the factual findings of the trial court and rectify the errors it committed as may have been properly assigned and as could be established by a reexamination of the evidence on record. It is the factual findings of the Court of Appeals, not those of the trial court, that as a rule are considered final and conclusive even on this Court (Hermo v. Hon. Court of Appeals, et al., 155 SCRA 24 [1987]). This being a petition for certiorari under Rule 45 of the Rules of Court, this Court will review only errors of law committed by the Court of Appeals. It is not the function of this Court to re-examine all over again the oral and documentary evidence submitted by the parties unless the findings of facts of the Court of Appeals is not supported by the evidence on record or the judgment is based on misapprehension of facts (Remalante v. Tibe, et al., 158 SCRA 138 [1988]; Hernandez v. Court of Appeals, et al., 149 SCRA 97 [1987]). It is the conclusion of the Court of Appeals, based on the evidence on record, that Amelita Constantino has not proved by clear and convincing evidence her claim that Ivan Mendez is the father of her son Michael Constantino. Such conclusion based on the evaluation of the evidence on record is controlling on this Court as the same is supported by the evidence on record. Even the trial court initially entertained such posture. It ordered the recognition of Michael as the illegitimate son of Ivan only when acting on the motions for reconsideration, it reconsidered, on October 21, 1976, its earlier decision dated June 21, 1976. Amelita's testimony on crossexamination that she had sexual contact with Ivan in Manila in the first or second week of November, 1974 (TSN, December 8, 1975, p. 108) is inconsistent with her response that she could not remember the date of their last sexual intercourse in November, 1974 (Ibid, p. 106). Sexual contact of Ivan and Amelita in the first or second week of November, 1974 is the crucial point that was not even established on direct examination as she merely testified that she had sexual intercourse with Ivan in the months of September, October and November, 1974. Michael Constantino is a full-term baby born on August 3, 1975 (Exhibit 6) so that as correctly pointed out by private respondent's counsel, citing medical science (Williams Obstetrics, Tenth Ed., p. 198) to the effect that "the mean duration of actual pregnancy, counting from the day of conception must be close to 267 days", the conception of the child (Michael) must have taken place about 267 days before August 3, 1975 or sometime in the second week of November, 1974. While Amelita testified that she had sexual contact with Ivan in November, 1974, nevertheless said testimony is contradicted by her own evidence (Exh. F), the letter dated February 11, 1975, addressed to Ivan Mendez requesting for a conference, prepared by her own counsel Atty. Roberto Sarenas to whom she must have confided the attendant circumstances of her pregnancy while still fresh in her memory, informing Ivan that Amelita is four (4) months pregnant so that applying the period of the duration of actual pregnancy, the child was conceived on or about October 11, 1974.

Petitioner's assertion that Ivan is her first and only boyfriend (TSN, December 8, 1975, p. 65) is belied by Exhibit 2, her own letter addressed to Mrs. Mendez where she revealed the reason for her attachment to Ivan who possessed certain traits not possessed by her boyfriend. She also confided that she had a quarrel with her boyfriend because of gossips so she left her work. 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. The burden of proof is on Amelita to establish her affirmative allegations that Ivan is the father of her son. Consequently, in the absence of clear and convincing evidence establishing paternity or filiation, the complaint must be dismissed. As regards Amelita's claim for damages which is based on Articles 19 3 & 21 4 of the Civil Code on the theory that through Ivan's promise of marriage, she surrendered her virginity, we cannot but agree with the Court of Appeals that more sexual intercourse is not by itself a basis for recovery. Damages could only be awarded if sexual intercourse is not a product of voluntariness and mutual desire. At the time she met Ivan at Tony's Restaurant, Amelita was already 28 years old and she admitted that she was attracted to Ivan (TSN, December 3, 1975, p. 83). Her attraction to Ivan is the reason why she surrendered her womanhood. Had she been induced or deceived because of a promise of marriage, she could have immediately severed her relation with Ivan when she was informed after their first sexual contact sometime in August, 1974, that he was a married man. Her declaration that in the months of September, October and November, 1974, they repeated their sexual intercourse only indicates that passion and not the alleged promise of marriage was the moving force that made her submit herself to Ivan. WHEREFORE, the instant petition is Dismissed for lack of merit. SO ORDERED. THIRD DIVISION [G.R. No. 132980. March 25, 1999] REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLADYS C. LABRADOR, respondent. DECISION PANGANIBAN, J.: Summary proceedings provided under Rule 108 of the Rules of Court and Article 412 of the Civil Code may be used only to correct clerical, spelling, typographical and other innocuous errors in the civil registry. Substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is observed. The Case Before us is a Petition for Review on certiorari seeking to set aside the March 5, 1998 Decision of the Regional Trial Court of Cebu City in Special Proceedings No. 6861-CEB.[1] The assailed Decision[2] ordered the civil registrar of Cebu City to make the necessary corrections in the birth certificate of Sarah Zita Caon Erasmo in the local civil registry, viz.:

"WHEREFORE, judgment is hereby rendered granting the petition. Accordingly, the erroneous entry with respect to the name of [the] child appearing in the birth certificate of Sarah Zita Caon Erasmo is hereby ordered corrected from SARAH ZITA CAON ERASMO to SARAH ZITA CAON and the erroneous entry in said birth certificate with respect to the name of [the] mother is likewise hereby ordered corrected from ROSEMARIE B. CAON to MARIA ROSARIO CAON. "The Local Civil Registrar of Cebu City is hereby ordered to make the foregoing corrections in the birth records of SARAH ZITA CAON ERASMO and to issue a birth certificate reflecting said corrections. "Furnish a copy of this Decision to the petitioner, her counsel, the Solicitor General, Asst. City Prosecutor Generosa C. Labra and the Local Civil Registrar of Cebu City." Disagreeing with the above disposition, the solicitor general brought this Petition directly to this Court on a pure question of law.[3] The Facts Respondent Gladys C. Labrador filed with the Regional Trial Court of Cebu City on September 26, 1997, a Petition for the correction of entries in the record of birth of Sarah Zita Erasmo, her niece. In her Petition, respondent alleged the following: "1. Petitioner is of legal age, married, a resident of 493-17, Archbishop Reyes Ave., Barrio Luz, Cebu City, where she can be served with the processes of this Honorable Court; "2. Respondent Local Civil Registrar of Cebu City is impleaded herein in his official capacity; he can be served with summons and other processes of this Honorable Court in his office at the City Health Department, Cebu City; "3. Petitioner is the sister of Maria Rosario Caon who is presently residing in the United States of America; "4. Sometime in 1986, petitioner's sister, Maria Rosario Caon, had a common law relationship with a certain Degoberto Erasmo, and during such cohabitation, petitioner's sister begot two (2) illegitimate children, one of which is SARAH ZITA B. ERASMO, who was born on April 27, 1988, as shown in her birth certificate, a copy of which is hereto attached as ANNEX "A"; "5. During the registration of the birth of SARAH ZITA, petitioner's sister told the respondent Local Civil Registrar that she was not legally married to the father of SARAH ZITA; "6. However, herein respondent erroneously entered the name of Sarah Zita in her birth record as SARAH ZITA C. ERASMO, instead of SARAH ZITA CAON. Not only that, the name of petitioner's sister, being the mother, was also erroneously written by the herein respondent as Rosemarie Caon, instead of Maria Rosario Caon,

"7. In order to straighten the record of birth of SARAH ZITA ERASMO and pursuant to Article 176 of the Family Code which provides: Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of the mother xxx [t]here is a need to correct the entry in the record of birth of SARAH ZITA ERASMO to SARAH ZITA CAON and to correct the name of her mother as appearing in her birth certificate from ROSEMARIE CAON to MARIA ROSARIO CAON. xxx xxx xxx"[4]

On September 17, 1997, the trial court set the case for hearing on October 29, 1997. It also directed the publication of the notice of hearing in a newspaper of general circulation in Cebu City once a week for three consecutive weeks.[5] On October 29, 1997, evidence was presented to establish the jurisdiction of the trial court to hear the petition.[6] Respondent Labrador was represented by Atty. Bienvenido V. Baring; the Republic, by Assistant City Prosecutor Generosa C. Labra. When Respondent Labrador testified on January 8, 1998, she repeated the allegations in her Petition. She stated that Sarah Zita Erasmo was her niece because Maria Rosario Caon, the mother of the child, was her (respondent's) sister. On cross-examination, respondent explained that she was the one who had reported the birth of Sarah to the local civil registrar, to whom she had erroneously given "Rosemarie" as the first name of the child's mother, instead of the real one, "Maria Rosario." Labrador explained that her sister was more familiarly known as Rosemarie; thus, the error. Respondent likewise averred that Rosemarie and Maria Rosario were one and the same person, and that she had no other sister named Rosemarie. She added that Maria Rosario was abroad where she lived with her foreigner husband.[7] Labrador then formally offered her evidence which included Maria Rosario's birth certificate[8] and a certification from the Office of the Civil Registrar that it had no record of marriage between Maria Rosario Caon and Degoberto Erasmo.[9] Prosecutor Labra, who conducted the cross-examination, did not object to the evidence offered. The Trial Court's Ruling The trial court granted Respondent Labrador's Petition, ratiocinating as follows: "From the evidence adduced, the Court is convinced that the allegations in the petition have been satisfactorily substantiated, the requisites for the publication have been complied with, and there is a need for the correction of the erroneous entries in the birth certificate of Sarah Zita Caon Erasmo. The entry in said birth certificate with respect to the name of the child should be corrected from SARAH ZITA CAON ERASMO to SARAH ZITA CAON and the entry with

respect to the name of the mother should be corrected from ROSEMARIE B. CAON to MARIA ROSARIO CAON." The Issues Petitioner posits the following issues: "(a) Whether or not a change in the record of birth in a civil registry, which affects the civil status of a person, from legitimate to illegitimate may be granted in a summary proceeding; (b) Whether or not Rule 108 of the Revised Rules of Court is the proper action to impugn the legitimacy of a child. The main issue is whether Rule 108 of the Rules of Court may be used to changed the entry in a birth certificate regarding the filiation of a child. The Courts Ruling The petition is meritorious. The lower court erred in ordering the corrections. Main Issue: Rule 108 Inapplicable Petitioner contends that the summary proceedings under Rule 108 of the Rules of court and Article 412 of the Civil Code may be used only to correct or change clerical or innocuous errors. It argues that Rule 108 "cannot be used to modify, alter or increase substantive rights, such as those involving the legitimacy or illegitimacy of the child, which respondent desires to do. The change sought will result not only in substantial correction in the child's record of birth but also in the child's rights which cannot be effected in a summary action."[10] We Agree. This issue has been resolved in Leonor v. Court of Appeals.[11] In that case, Respondent Mauricio Leonor filed a petition before the trial court seeking the cancellation of the registration of his marriage to Petitioner Virginia Leonor. He alleged, among others, the nullity of their legal vows arising from the "non-observance of the legal requirements for a valid marriage." In debunking the trial court's ruling granting such petition, the Court held as follows: "On its face, the Rule would appear to authorize the cancellation of any entry regarding "marriages" in the civil registry for any reason by the mere filing of a verified petition for the purpose. However, it is not as simple as it looks. Doctrinally, the only errors that can be canceled or corrected under this Rule are typographical or clerical errors, not material or substantial ones like the validity or nullity of a marriage. A clerical error is one which is visible to the eyes or obvious to the understanding; error made by a clerk or a transcriber; a mistake in copying or writing (Black vs. Republic, L-10869, Nov. 28, 1958); or some harmless and innocuous change such as a correction of name that is clearly misspelled or of a mis-statement of the occupation of the parent (Ansalada vs. Republic, L-10226, Feb. 14, 1958).

"Where the effect of a correction in a civil registry will change the civil status of petitioner and her children from legitimate to illegitimate, the same cannot be granted except only in an adversarial proceeding. xxx "Clearly and unequivocally, the summary procedure under Rule 108, and for that matter under Article 412 of the Civil Code cannot be used by Mauricio to change his and Virginia's civil status from married to single and of their three children from legitimate to illegitimate. xxx" (Emphasis supplied.) Thus, where the effect of a correction of an entry in a civil registry will change the status of a person from "legitimate" to "illegitimate," as in Sarah Zita's case, the same cannot be granted in summary proceedings. In Republic v. Valencia,[12] we likewise held that corrections involving the nationality or citizenship of a person were substantial and could not be effected except in adversarial proceedings. "It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving the nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. This Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. xxx xxx xxx

"What is meant by 'appropriate adversary proceeding?' Black's Law Dictionary defines 'adversary proceeding' as follows: 'One having opposing parties, contested, as distinguished from an ex parte application, one [in] which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. Excludes an adoption proceeding. (Platt v. Magagnini, 187 p.716, 718, 11 0 Was. 39)'. xxx xxx xxx"[13]

Thus, Valencia requires that a petition for a substantial correction or change of entries in the civil registry should have as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby. It further mandates that a full hearing, not merely a summary proceeding, be conducted. In the present case, the changes sought by Respondent Labrador were undoubtedly substantial: first, she sought to have the name appearing on the birth certificate changed from "Sarah Zita Erasmo" to "Sarah Zita Caon, thereby transforming the filiation of the child from legitimate to

illegitimate. Second, she likewise sought to have the name of Sarah Zita's mother, which appeared as "Rosemarie" in the child's birth record, changed to "Maria Rosario." Pursuant to Valencia, an adversarial proceeding is essential in order to fully thresh out the allegations in respondent's petition. Sarah Zita and her purported parents should have been parties to the proceeding. After all, it would affect her legitimacy, as well as her successional and other rights. In fact, the change may also embarrass her because of the social stigma that illegitimacy may bring. The rights of her parents over her and over each other would also be affected. Furthermore, a change of name would affect not only the mother but possibly creditors, if any. Finally, no sufficient legal explanation has been given why an aunt, who had no appointment as guardian of the minor, was the party-petitioner. True, it would seem that an adversarial proceeding was conducted -- the trial court set the case for hearing and had the notice of hearing published in a newspaper of general circulation in Cebu City once a week for three consecutive weeks; a hearing was actually conducted, during which the respondent and the petitioner were represented: the respondent was able to testify and be cross-examined by the petitioner's representative. But such proceeding does not suffice. In Labayo-Rowe v. Republic,[14] Emperatriz LabayoRowe filed a petition seeking to change an entry in her child Victoria Miclats birth certificate. Alleging that she had never been married to her daughters father, she wanted her civil status appearing on the certificate changed from married to single. This Court ruled that the trial court erred in granting Labayo-Rowes petition, because the proper parties had not been impleaded; nor had the proceedings been sufficiently adversarial, viz.: In the case before Us, since only the Office of the Solicitor General was notified through the Office of the Provincial Fiscal, representing the Republic of the Philippines as the only respondent, the proceedings taken, which [are] summary in nature, [are] short of what is required in cases where substantial alterations are sought. Aside from the Office of the Solicitor General, all other indispensable parties should have been made respondents. They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be notified or represented. The truth is best ascertained under an adversary system of justice. The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from legitimate to illegitimate. Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. Rule 108, like all other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that such rules 'shall not diminish, increase or modify substantive rights.' Said rule would thereby become an unconstitutional exercise which would

tend to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code. xxx xxx xxx"[15]

Even granting that the proceedings held to hear and resolve the petition before the lower court were adversarial, it must be noted that the evidence presented by the respondent was not enough to fully substantiate her claim that Sarah Zita was illegitimate. Her evidence consisted mainly of her testimony and a certification from the civil registry of Cebu City that such office had no record of a marriage between Rosemarie/Maria Rosario Caon and Degoberto Erasmo. Unlike in other cases where Valencia was applied,[16] Respondent Labrador was not able to prove the allegations in her petition. Indeed, respondent correctly cites Article 176 of the Family Code, which states that "illegitimate children shall use the surname[s] xxx of their mothers." But to enforce such provision, the proper recourse is an adversarial contest. It must be stressed that Rule 108 does not contemplate an ordinary civil action but a special proceeding. By its nature, this recourse seeks merely to correct clerical errors, and not to grant or deny substantial rights. To hold otherwise is tantamount to a denial of due process to third parties and the whole world. WHEREFORE, the petition is hereby GRANTED. The assailed Decision of the Regional Trial Court of Cebu City in SP. Proc. No. 6861-CEB is hereby ANNULLED and SET ASIDE. No costs. Let a copy of this Decision be served upon the local civil registrar of Cebu City. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2474 May 30, 1951

MARIANO ANDAL, assisted by mother Maria Dueas as guardian ad litem, and MARIA DUEAS, plaintiffs, vs. EDUVIGIS MACARAIG, defendant. Reyes and Dy-Liaco for appellants. Tible, Tena and Borja for appellees. BAUTISTA ANGELO, J.:

Mariano Andal, a minor, assisted by his mother Maria Dueas, as guardian ad litem, brought an action in the Court of First Instance of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in the barrio of Talacop, Calabanga, Camarines Sur. The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueas; that Emiliano Andal died on September 24, 1942; that Emiliano Andal was the owner of the parcel of land in question having acquired it from his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former; that Emiliano Andal had been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking advantage of the abnormal situation then prevailing, entered the land in question. The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are involved. It appears undisputed that the land in question was given by Eduvigis Macaraig to her son Emiliano Andal by virtue of a donation propter nuptias she has executed in his favor on the occasion of his marriage to Maria Dueas. If the son born to the couple is deemed legitimate, then he is entitled to inherit the land in question. If otherwise, then the land should revert back to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue, therefore, to be determined hinges on the legitimacy of Mariano Andal in so far as his relation to Emiliano Andal is concerned. The determination of this issue much depends upon the relationship that had existed between Emiliano Andal and his wife during the period of conception of the child up to the date of his birth in connection with the death of the alleged father Emiliano Andal. The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in January 1941. Sometime thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His sickness became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up from his bed. On September 10, 1942, Maria Duenas, his wife, eloped with Felix, and both went to live in the house of Maria's father, until the middle of 1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other as husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did not even attend his funeral. On June 17, 1943, Maria Dueas gave birth to a boy, who was given the name of Mariano Andal. Under these facts, can the child be considered as the legitimate son of Emiliano? Article 108 of the Civil Code provides: 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. Since 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. Is there any evidence to prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano was sick of tuberculosis and was so weak that he could hardly move and get up from his bed sufficient to overcome this presumption? Manresa on this point says: Impossibility of access by husband to wife would include (1) absence during the initial period of conception, (2) impotence which is patent, continuing and incurable, and (3) imprisonment, unless it can be shown that cohabitation took place through corrupt violation of prison regulations. Manresa, 492-500, Vol. I, cited by Dr. Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol. 1, p.90)." There was no evidence presented that Emiliano Andal was absent during the initial period of conception, specially during the period comprised between August 21, 1942 and September 10, 1942, which is included in the 120 days of the 300 next preceding the birth of the child Mariano Andal. On the contrary, there is enough evidence to show that during that initial period, Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother, was living in the same house, and he and the wife were indulging in illicit intercourse since May, 1942, that does not preclude cohabitation between Emiliano and his wife. We admit that Emiliano was already suffering from tuberculosis and his condition then was so serious that he could hardly move and get up from bed, his feet were swollen and his voice hoarse. But experience shows that this does not prevent carnal intercourse. There are cases where persons suffering from this sickness can do the carnal act even in the most crucial stage because they are more inclined to sexual intercourse. As an author has said, "the reputation of the tuberculosis towards eroticism (sexual propensity) is probably dependent more upon confinement to bed than the consequences of the disease." (An Integrated Practice of Medicine, by Hyman, Vol. 3, p.2202). There is neither evidence to show that Emiliano was suffering from impotency, patent, continuous and incurable, nor was there evidence that he was imprisoned. The presumption of legitimacy under the Civil Code in favor of the child has not, therefore, been overcome. We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the Rules of Court, which is practically based upon the same rai'son d'etre underlying the Civil Code. Said section provides: The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be legitimate, if not born within one hundred eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution.

We have already seen that Emiliano and his wife were living together, or at least had access one to the other, and Emiliano was not impotent, and the child was born within three (300) days following the dissolution of the marriage. Under these facts no other presumption can be drawn than that the issue is legitimate. We have also seen that this presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in carnal intercourse. And here there is no such proof. The fact that Maria Dueas has committed adultery can not also overcome this presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p. 92). In view of all the foregoing, we are constrained to hold that the lower court did not err in declaring Mariano Andal as the legitimate son of the spouses Emiliano Andal and Maria Dueas. Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-49162 July 28, 1987

JANICE MARIE JAO, represented by her mother and guardian ad litem, ARLENE S. SALGADO, petitioner, vs. THE HONORABLE COURT OF APPEALS and PERICO V. JAO, respondents. PADILLA, J.: Appeal by certiorari from the decision* of the Court of Appeals in CA-G.R. No. 51078-R, dated 29 August 1978, which dismissed petitioner"s action for recognition and support against private respondent, and from the respondent Court"s resolution, dated 11 October 1978, denying petitioner"s motion for reconsideration of said decision. On 28 October 1968, petitioner Janice Marie Jao, then a minor, represented by her mother and guardian-ad-litem Arlene Salgado, filed a case for recognition and support with the Juvenile and Domestic Relations Court against private respondent Perico V. Jao. The latter denied paternity so the parties agreed to a blood grouping test which was in due course conducted by the National Bureau of Investigation (NBI) upon order of the trial court. The result of the blood grouping test, held 21 January 1969, indicated that Janice could not have been the possible offspring of Perico V. Jao and Arlene S. Salgado.1 The trial court initially found the result of the tests legally conclusive but upon plaintiff"s (herein petitioner"s) second motion for reconsideration, it ordered a trial on the merits, after which, Janice was declared the child of Jao, thus entitling her to his monthly support.

Jao appealed to the Court of Appeals, questioning the trial court"s failure to appreciate the result of the blood grouping tests. As there was no showing whatsoever that there was any irregularity or mistake in the conduct of the tests, Jao argued that the result of the tests should have been conclusive and indisputable evidence of his non-paternity. The Court of Appeals upheld Jao"s contentions and reversed the trial court"s decision. In its decision, the Court of Appeals held: From the evidence of the contending parties, it appears undisputed that JAO was introduced to ARLENE at the Saddle and Sirloin, Bay Side Club, by Melvin Yabut. After this meeting, JAO dated and courted ARLENE. Not long thereafter, they had their first sexual intercourse and subsequently, they lived together as husband and wife. ... It further appears undisputed that in April 1968, JAO accompanied ARLENE to the Marian General Hospital for medical check-up and her confinement was with JAO"s consent. JAO paid the rentals where they lived, the salaries of the maids, and other household expenses. ... The record discloses that ARLENE gave birth to JANICE on August 16, 1968, after completing 36 weeks of pregnancy, which indicates that ARLENE must have conceived JANICE on or about the first week of December, 1967. "Thus, one issue to be resolved in this appeal is whether on or about that time, JAO and ARLENE had sexual intercourse and were already living with one another as husband and wife. In this connection, ARLENE contends that she first met JAO sometime in the third or fourth week of November, 1967 at the Saddle and Sirloin, Bayside Club; that after several dates, she had carnal knowledge with him at her house at 30 Long beach, Merville, Paranaque. Rizal in the evening of November 30, 1967, and that he started to live with her at her dwelling after December 16, 1967, the date they finished their cruise to Mindoro Island. On the other hand, JAO, albeit admitting that he met ARLENE at the Saddle and Sirloin, Bayside Club, however, maintains that this was on December 14, 1967 because the day following, he and his guests: ARLENE, Melvin Yabut, Didi Crescini and Charlie Litonjua went to Mindoro by boat. He dated ARLENE four times in January, 1968. He remembered he had carnal knowledge of her for the first time on January 18, 1968, because that was a week after his birthday and it was only in May, 1968 that he started cohabiting with her at the Excelsior Apartments on Roxas Boulevard. These conflicting versions of the parties emphasize, in resolving the paternity of JANICE, the role of the blood grouping tests conducted by the NBI and which resulted in the negative finding that in a union with ARLENE, JAO could not be the father of JANICE. We cannot sustain the conclusion of the trial court that the NBI is not in a position to determine with mathematical precision the issue of parentage by blood grouping test, considering the rulings of this Court ... where the blood grouping tests of the NBI were admitted; especially where, in the latter case, it was Dr. Lorenzo Sunico who conducted the test and it appears that in

the present case, the same Dr. Sunico approved the findings and report. ... In Co Tao vs. Court of Appeals, 101 Phil. 188, the Supreme Court had given weight to the findings of the NBI in its blood grouping test. Thus, it cannot be gainsaid that the competency of the NBI to conduct blood grouping tests has been recognized as early as the 1950"s. The views of the Court on blood grouping tests may be stated as follows: Paternity Science has demonstrated that by the analysis of blood samples of the mother, the child, and the alleged father, it can be established conclusively that the man is not the father of the child. But group blood testing cannot show that a man is the father of a particular child, but at least can show only a possibility that he is. Statutes in many states, and courts in others, have recognized the value and the limitations of such tests. Some of the decisions have recognized the conclusive presumption of non-paternity where the results of the test, made in the prescribed manner, show the impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court may scientifically be completely accurate, and intolerable results avoided, such as have occurred where the finding is allowed to turn on oral testimony conflicting with the results of the test. The findings of such blood tests are not admissible to prove the fact of paternity as they show only a possibility that the alleged father or any one of many others with the same blood type may have been the father of the child. But the Uniform Act recognizes that the tests may have some probative value to establish paternity where the blood type and the combination in the child is shown to be rare, in which case the judge is given discretion to let it in (I Jones on Evidence, 5th Ed., pp. 193-194). In one specific biological trait, viz, blood groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between the trait of the progenitor and the trait of the progeny. In other words, the blood composition of a child may be some evidence as to the child"s paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively i.e. to evidence that a particular man F is not the father of a particular child C. (I Wigmore on Evidence 3rd Ed., pp. 610-611). In a last ditch effort to bar the admissibility and competency of the blood test, JANICE claims that probative value was given to blood tests only in cases where they tended to establish paternity; and that there has been no case where the blood test was invoked to establish nonpaternity, thereby implying that blood tests have probative value only when the result is a possible affirmative and not when in the negative. This contention is fallacious and must be rejected. To sustain her contention, in effect, would be recognizing only the possible affirmative finding but not the blood grouping test itself for if the result were negative, the test is regarded worthless. Indeed, this is illogical. .... As an admitted test, it is admissible in subsequent similar proceedings whether the result be in the negative or in the affirmative. ... The Court of Appeals also found other facts that ran contrary to petitioner"s contention that JAO"s actions before and after JANICE was born were tantamount to recognition. Said the respondent appellate court:

On the contrary, after JANICE was born, JAO did not recognize her as his own. In fact, he filed a petition that his name as father of JANICE in the latter"s certificate of live birth be deleted, evidencing his repudiation, rather than recognition. The mere acts of JAO in cohabiting with ARLENE, the attention given to her during her pregnancy and the financial assistance extended to her cannot overcome the result of the blood grouping test. These acts of JAO cannot be evaluated as recognizing the unborn JANICE as his own as the possession of such status cannot be founded on conjectures and presumptions, especially so that, We have earlier said, JAO refused to acknowledge JANICE after the latter"s birth. JAO cannot be compelled to recognize JANICE based on paragraph 2 of Article 283 in relation to Article 289 of the New Civil Code which provides: "When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter. Nor can there be compulsory recognition under paragraphs 3 or 4 of said article which states: (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father. As aptly appreciated by the court below, JANICE could have been conceived from November 20, 1967 to December 4, 1967. Indeed, ARLENE claims that her first sexual intercourse with JAO was on November 30, 1967 while the latter avers it was one week after January 18, 1968. However, to satisfy paragraph 3 as above-quoted, JANICE must have been conceived when ARLENE and JAO started to cohabit with one another. Since ARLENE herself testified that their cohabitation started only after December 16, 1967, then it cannot be gainsaid that JANICE was not conceived during this cohabitation. Hence, no recognition will lie. Necessarily, recognition cannot be had under paragraph 4 as JANICE has no other evidence or proof of her alleged paternity. Apart from these, there is the claim of JAO that, at the critical time of conception, ARLENE had carnal knowledge with two other men: "Oying" Fernandez and Melvin Yabut, which was not even rebutted; and considering that it was Melvin Yabut, who introduced ARLENE to JAO at the Bayside Club. Moreover, the testimony of ARLENE is not wholly reliable. When the trial court said that "the Court is further convinced of plaintiff"s cause by ARLENE"s manner of testifying in a most straight-forward and candid manner," the fact that ARLENE was admittedly a movie actress may have been overlooked so that not even the trial court could detect, by her acts, whether she was lying or not. WHEREFORE, the judgment appealed from is hereby set aside and a new one entered dismissing plaintiff-appellee"s complaint. Without pronouncement as to costs. SO ORDERED. The petitioner now brings before this Court the issue of admissibility and conclusiveness of the result of blood grouping tests to prove non-paternity.

In this jurisdiction, the result of blood tests, among other evidence, to, affirm paternity was dealt with in Co Tao v. Court of Appeals,2 an action for declaration of filiation, support and damages. In said case, the NBI expert"s report of the blood tests stated that "from their blood groups and types, the defendant Co Tao is a possible father of the child." From this statement the defendant contended that the child must have been the child of another man. The Court noted: "For obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give his opinion that he is a "possible father." This possibility, coupled with the other facts and circumstances brought out during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel."3 Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been much more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed parentage has already become an important legal procedure. There is now almost universal scientific agreement that blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity that is, the fact that the blood type of the child is a possible product of the mother and alleged father does not conclusively prove that the child is born by such parents; but, if the blood type of the child is not the possible blood type when the blood of the mother and that of the alleged father are crossmatched, then the child cannot possibly be that of the alleged father.4 In jurisdictions like the United States, the admissibility of blood tests results to prove nonpaternity has already been passed upon in several cases. In Gilpin v. Gilpin5 the positive results of blood tests excluding paternity, in a case in which it was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the question of paternity. In Cuneo v. Cuneo6 evidence of non-paternity consisting of the result of blood grouping tests was admitted despite a finding that the alleged father had cohabited with the mother within the period of gestation. The Court said that the competent medical testimony was overwhelmingly in favor of the plaintiff, and to reject such testimony would be tantamount to rejecting scientific fact. Courts, it was stated, should apply the results of science when competently obtained in aid of situations presented, since to reject said result was to deny progress.7 This ruling was also echoed in Clark v. Rysedorph,8 a filiation proceeding where an uncontradicted blood grouping test evidence, excluding paternity, was held conclusive.9 Legislation expressly recognizing the use of blood tests is also in force in several states.10 Tolentino,11 affirms this rule on blood tests as proof of non-paternity, thus Medical science has shown that there are four types of blood in man which can be transmitted through heredity. Although the presence of the same type of blood in two persons does not indicate that one was begotten by the other, yet the fact that they are of different types will indicate the impossibility of one being the child of the other. Thus, when the supposed father and the alleged child are not in the same blood group, they cannot be father and child by consanguinity. The Courts of Europe today regard a blood test exclusion as an unanswerable and indisputable proof of non-paternity. 12 Moreover,

The cohabitation between the mother and the supposed father cannot be a ground for compulsory recognition if such cohabitation could not have produced the conception of the child. This would be the case, for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by blood tests that the child and the supposed father belong to different blood groups, the cohabitation by itself cannot be a ground for recognition. 13 Petitioner has attempted to discredit the result of the blood grouping tests in the instant case by impugning the qualifications of the NBI personnel who performed the tests and the conduct of the tests themselves. Her allegations, in this regard, appear to be without merit. The NBI"s forensic chemist who conducted the tests is also a serologist, and has had extensive practice in this area for several years. The blood tests were conducted six (6) times using two (2) scientifically recognized blood grouping systems, the MN Test and the ABO System,14 under witness and supervision.15 Even the allegation that Janice was too young at five months to have been a proper subject for accurate blood tests must fall, since nearly two years after the first blood test, she, represented by her mother, declined to undergo the same blood test to prove or disprove their allegations, even as Jao was willing to undergo such a test again.161avvphi1 Accordingly, the Court affirms the decision of the Court of Appeals and holds that the result of the blood grouping tests involved in the case at bar, are admissible and conclusive on the nonpaternity of respondent Jao vis-a-vis petitioner Janice. No evidence has been presented showing any defect in the testing methods employed or failure to provide adequate safeguards for the proper conduct of the tests. The result of such tests is to be accepted therefore as accurately reflecting a scientific fact. In view of the findings of fact made by the Court of Appeals, as heretofore quoted, which are binding on this Court, we do not find it necessary to further pass upon the issue of recognition raised by petitioner. WHEREFORE, the instant petition for review is hereby denied. Without pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-49542 September 12, 1980

ANTONIO MACADANGDANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.

MAKASIAR, J.: This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R which reversed the decision of the Court of First Instance of Davao, Branch IX dismissing the action for recognition and support filed by respondent Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be the illegitimate son of petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches the age of majority (p. 47, rec.; p. 10, ROA).

The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.]) She allegedly had intercourse with petitioner Antonio Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days following the illicit encounter), she gave birth to a baby boy who was named Rolando Macadangdang in baptismal rites held on December 24,1967 (Annex "A", List of Exhibits). The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for recognition and support against petitioner (then defendant) with the Court of First Instance of Davao, Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA). Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim and praying for its dismissal (p. 3, ROA). On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of the parties, an amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA). In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The decision invoked positive provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA). On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her appeal, appellant assigned these errors: 1. The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.);

2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot validly question the legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal husband as a party in the instant case (p. 18, rec.). In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p. 47, and thus declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.). On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of merit. (p. 56, rec.). Hence, petitioner filed this petition on January 12, 1979. The issues boil down to: 1. Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses Elizabeth Mejias and Crispin Anahaw; and 2. Whether or not the wife may institute an action that would bastardize her child without giving her husband, the legally presumed father, an opportunity to be heard. The crucial point that should be emphasized and should be straightened out from the very beginning is the fact that respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by reason thereof, she and her husband separated. This fact surfaced from the testimony of respondent herself in the hearing of September 21, 1972 when this case was still in the lower court. The pertinent portions of her testimony are thus quoted: By Atty. Fernandez: Q What did you feel as a result of the incident where Antonio Macadangdang used pill and took advantage of your womanhood? A I felt worried, mentally shocked and humiliated. Q If these feelings: worries, mental shock and humiliation, if estimated in monetary figures, how much win be the amount? A Ten thousand pesos, sir. Q And because of the incidental what happened to your with Crispin Anahaw. xxx xxx xxx

WITNESS: A We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis supplied).

From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given with spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning or interpretation of the word "incident" other than that of the initial contact between petitioner and respondent. Even a layman would understand the clear sense of the question posed before respondent and her categorical and spontaneous answer which does not leave any room for interpretation. It must be noted that the very question of her counsel conveys the assumption of an existing between respondent and her husband. The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot therefore be considered conclusive and binding on this Court. It is based solely on the testimony of respondent which is self-serving. Nothing in the records shows that her statement was confirmed or corroborated by another witness and the same cannot be treated as borne out by the record or that which is based on substantial evidence. It is not even confirmed by her own husband, who was not impleaded. In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings of facts of the Court of Appeals are conclusive on the parties and on the Supreme Court, unless (1) the conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admission of both appellant and appellee; (6) the findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; and (9) when the finding of facts of the Court of Appeals is premised on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola Bottling Company of the Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied]. Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions to the general rule. This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc., supra. In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30, 1979), which petitioner aptly invokes, this Court thus emphasized: ... But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. There are exceptions to the general rule, where we have reviewed the findings of fact of the Court of Appeals ... (emphasis supplied). The following provisions of the Civil Code and the Rules of Court should be borne in mind:

Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption, no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were separately, in such a way that access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in article 255, the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purposes of this article, the wife's adultery need not be proved in a criminal case. xxx xxx xxx

Sec. 4. Quasi-conclusive presumptions of legitimacy (a) Children born after one hundred eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed legitimate. Against presumption no evidence be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: [1] By the impotence of the husband

[2] By the fact that the husband and the wife were living separately, in such a way that access was not possible;

[3]

By the serious illness of the husband;

(b) The child shall be presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (c) Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth above, the child is presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purpose of the rule, the wife's adultery need not be proved in a criminal case. ... (Rule 131, Rules of Court). Whether or not respondent and her husband were separated would be immaterial to the resolution of the status of the child Rolando. What should really matter is the fact that during the initial one hundred twenty days of the three hundred which preceded the birth of the renamed child, no concrete or even substantial proof was presented to establish physical impossibility of access between respondent and her spouse. From her very revealing testimony, respondent declared that she was bringing two sacks of rice to Samal for her children; that her four children by her husband in her mother's house in the said town; that her alleged estranged husband also lived in her mother's place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during her affair with petitioner and right after her delivery, respondent went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia Avila (the boy's yaya), the following came out: Q Why were you taking care of the child Rolando, where was Elizabeth Mejias? A Because Elizabeth went to her parents in Same Davao del Norte for treatment because she had a relapse (p. 13, t.s.n., of Sept. 21, 1972). From the foregoing and since respondent and her husband continued to live in the same province, the fact remains that there was always the possibility of access to each other. As has already been pointed out, respondent's self-serving statements were never corroborated nor confirmed by any other evidence, more particularly that of her husband. The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after March, 1967 when the "incident" or first illicit intercourse between respondent and petitioner took place, and also, seven months from their separation (if there really was a separation). It must be noted that as of March, 1967, respondent and Crispin Anahaw had already four children; hence, they had been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando came more than one hundred eighty 180 days following the celebration of the said marriage and before 300 days following the alleged separation between aforenamed spouses. Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the legitimate son of respondent and her husband.

The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner and respondent is another proof that the said child was not of petitioner since, from indications, he came out as a normal full-term baby. It must be stressed that the child under question has no birth certificate of Baptism (attached in the List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note again that he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could have been born prematurely. But such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent herself and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which birth was obvisouly normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for by said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15 days and 2 months of age, respondent left him to the care of the yaya when the former left for Samal for treatment and returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said that the child was a full-term baby at birth, normally delivered, and raised normally by the yaya. If it were otherwise or if he were born prematurely, he would have needed special care like being placed in an incubator in a clinic or hospital and attended to by a physician, not just a mere yaya. These all point to the fact that the baby who was born on October 30, 1967 or 7 months from the first sexual encounter between petitioner and respondent was conceived as early as January, 1967. How then could he be the child of petitioner? In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified but not the veracity of the states or declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained in the certificate that concern the relationship of the person baptized. Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law. The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120 days of the 300 which preceded the birth of the child. This presumption is actually quasi-conclusive and may be rebutted or refuted by only one evidence the physical impossibility of access between husband and wife within the first 120 days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by any of these: 1. 2. Impotence of the husband; Living separately in such a way that access was impossible and

3.

Serious illness of the husband.

This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during the period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311). The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable doubt that there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary; where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child (Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341). To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to the wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance which makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a circumstance to corroborate proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408). Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the physical inability to perform the act of sexual intercourse. In respect of the impotency of the husband of the mother of a child, to overcome the presumption of legitimacy on conception or birth in wedlock or to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and convincing, irresistible or positive (S.C. Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50). The separation between the spouses must be such as to make sexual access impossible. This may take place when they reside in different countries or provinces, and they have never been together during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison regulations (1 Manresa 492-500). The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his wife; such as, when because of a injury, he was placed in a plaster cast, and it was inconceivable to have sexual intercourse without the most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced temporary or permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet 352). Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering from tuberculosis can do the carnal act even

in the most crucial stage of health because then they seemed to be more inclined to sexual intercourse. The fact that the wife had illicit intercourse with a man other than her husband during the initial period, does not preclude cohabitation between said husband and wife. Significantly American courts have made definite pronouncements or rulings on the issues under consideration. The policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the presumption that a child so born is the child of the husband and is legitimate even though the wife was guilty of infidelity during the possible period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18,19 & 20). So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of procreation or was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife's pregnancy (10 C.J.S. p. 20). The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and this includes children born after the separation [10 C.J.S. pp. 23 & 24; emphasis supplied]. It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress has been adopted for two solid reasons. First, in a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration (Power vs. State, 95 N.E., 660). Second, the article is established as a guaranty in favor of the children whose condition should not be under the mercy of the passions of their parents. The husband whose honor if offended, that is, being aware of his wife's adultery, may obtain from the guilty spouse by means of coercion, a confession against the legitimacy of the child which may really be only a confession of her guilt. Or the wife, out of vengeance and spite, may declare the as not her husband's although the statement be false. But there is another reason which is more powerful, demanding the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being possible that it be the husband himself (Manresa, Vol. I, pp. 503-504). Hence, in general, good morals and public policy require that a mother should not be permitted to assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77). The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor Merely upon evidence that no actual act of sexual intercourse occurred between husband and wife at or about the time the wife became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).

With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband (Tolentino, citing 1 Vera 170; 4 Borja 23-24). It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and scandalous, not only because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642). In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and mother is not admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access to his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36). At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314). The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only in a direct suit brought for the purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied). Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the Identity of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192). Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory provisions obviating incompetency on the ground of interest, or the fact that the conception was antenuptial. The rule is said to be founded in decency, morality and public policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26). From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent man, having had four children with his wife; that even if he and were even separately (which the latter failed to prove anyway) and assuming, for argument's sake, that they were really separated, there was the possibility of physical access to each other considering their proximity to each other and considering further that respondent still visited and recuperated in her mother's house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have any serious illness or any illness whatsoever which would have rendered him incapable of having sexual act with his wife. No substantial evidence whatsoever was brought out to negate the aforestated facts.

Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer" after her flings. And she deliberately did not include nor present her husband in this case because she could not risk her scheme. She had to be certain that such scheme to bastardize her own son for her selfish motives would not be thwarted. This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the illegitimate child of petitioner. From all indications, respondent has paraded herself as a woman of highly questionable character. A married woman who, on first meeting, rides with a total stranger who is married towards nightfall, sleeps in his house in the presence of his children, then lives with him after their initial sexual contact the atmosphere for which she herself provided is patently immoral and hedonistic. Although her husband was a very potent man, she readily indulged in an instant illicit relationship with a married man she had never known before. Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after birth, she left him in the care of a yaya for several months. This is not the normal instinct and behavior of a mother who has the safety and welfare of her child foremost in her mind. The filing of this case itself shows how she is capable of sacrificing the psycho-social future (reputation) of the child in exchange for some monetary consideration. This is blatant shamelessness. It also appears that her claim against petitioner is a disguised attempt to evade the responsibility and consequence of her reckless behavior at the expense of her husband, her illicit lover and above all her own son. For this Court to allow, much less consent to, the bastardization of respondent's son would give rise to serious and far-reaching consequences on society. This Court will not tolerate scheming married women who would indulge in illicit affairs with married men and then exploit the children born during such immoral relations by using them to collect from such moneyed paramours. This would be the form of wrecking the stability of two families. This would be a severe assault on morality. And as between the paternity by the husband and the paternity by the paramour, all the circumstances being equal, the law is inclined to follow the former; hence, the child is thus given the benefit of legitimacy. Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus: Art. 220. In case of doubt, an presumptions favor the solidarity of the family. Thus, every of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression. WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-75377 February 17, 1988

CHUA KENG GIAP, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT and CHUA LIAN KING respondents.

CRUZ, J.: We are faced once again with still another bid by petitioner for the status of a legitimate heir. He has failed before, and he will fail again. In this case, the petitioner insists that he is the son of the deceased Sy Kao and that it was error for the respondent court to reject his claim. He also says his motion for reconsideration should not have been denied for tardiness because it was in fact filed on time under the Habaluyas ruling. 1 This case arose when Chua Keng Giap filed on May 19, 1983, a petition for the settlement of the estate of the late Sy Kao in the regional trial court of Quezon City. The private respondent moved to dismiss for lack of a cause of action and of the petitioner's capacity to file the petition. The latter, it was claimed, had been declared as not the son of the spouses Chua Bing Guan and Sy Kao in S.P. No. Q-12592, for the settlement of the estate of the late Chua Bing Guan. The decision in that case had long become final and executory. 2 The motion was denied by Judge Jose P. Castro, who held that the case invoked decided the paternity and not the maternity of the petitioner. 3 Holding that this was mere quibbling, the respondent court reversed the trial judge in a petition for certiorari filed by the private respondent. 4 The motion for reconsideration was denied for late filing. 5 The petitioner then came to this Court to challenge these rulings. The petitioner argues at length that the question to be settled in a motion to dismiss based on lack of a cause of action is the sufficiency of the allegation itself and not whether these allegations are true or not, for their truth is hypothetically admitted. 6 That is correct. He also submits that an order denying a motion to dismiss is merely interlocutory and therefore reversible not in a petition for certiorari but on appeal. 7 That is also correct Even so, the petition must be and is hereby denied.

The petitioner is beating a dead horse. The issue of his claimed filiation has long been settled, and with finality, by no less than this Court. That issue cannot be resurrected now because it has been laid to rest in Sy Kao v. Court of Appeals, 8 decided on September 28, 1984. In that case, Sy Kao flatly and unequivocally declared that she was not the petitioner's mother. The Court observed through Justice Hugo E. Gutierrez, Jr. Petitioner Sy Kao denies that respondent Chua Keng Giap is her son by the deceased Chua Bing Guan. Thus, petitioner's opposition filed on December 19, 1968, is based principally on the ground that the respondent was not the son of Sy Kao and the deceased but of a certain Chua Eng Kun and his wife Tan Kuy. After hearing on the merits which lasted for ten years, the court dismissed the respondent's petition on March 2, 1979 on a finding that he is not a son of petitioner Sy Kao and the deceased, and therefore, had no lawful interest in the estate of the latter and no right to institute the intestacy proceedings. The respondent tried to appeal the court's resolution but his appeal was denied by the lower court for having been filed out of time. He then filed a mandamus case with the Court of appeals but the same was dismissed. Respondent, therefore, sought relief by filing a petition for certiorari, G.R. No. 54992, before this Court but his petition was likewise dismissed on January 30, 1982, for lack of merit. His subsequent motions for reconsideration met a similar fate. xxx xxx xxx

To allow the parties to go on with the trial on the merits would not only subject the petitioners to the expense and ordeal of obligation which might take them another ten years, only to prove a point already decided in Special Proceeding No. Q-12592, but more importantly, such would violate the doctrine of res judicata which is expressly provided for in Section 49, Rule 39 of the Rules of Court. There is no point in prolonging these proceedings with an examination of the procedural objections to the grant of the motion to dismiss. In the end, assuming denial of the motion, the resolution of the merits would have to be the same anyway as in the aforesaid case. The petitioner's claim of filiation would still have to be rejected. Discussion of the seasonableness of the motion for reconsideration is also unnecessary as the motion would have been validly denied just the same even if filed on time. Who better than Sy Kao herself would know if Chua Keng Giap was really her son? More than any one else, it was Sy Kao who could say as indeed she has said these many years--that Chua Keng Giap was not begotten of her womb. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered. Republic of the Philippines

SUPREME COURT Manila FIRST DIVISION G.R. No. L-69679 October 18, 1988

VIOLETA CABATBAT LIM, LIM BIAK CHIAO and CALASIAO BIJON FACTORY, petitioners, vs. INTERMEDIATE APPELLATE COURT, CONSORCIA FRIANEZA GOLEA, MARIA FRIANEZA VERGARA, BENEDICTA FRIANEZA MAYUGBA BONIFACIA FRIANEZA HEIRS OF DOMINGO FRIANEZA namely, DECIDERIA Q. VDA. DE FRIANEZA FRANCISCO, DONA, VILMA and DECIDERIA, all surnamed FRIANEZA HEIRS OF DANIEL FRIANEZA namely, ADELA V. VDA. DE FRIANEZA in her behalf and as Guardian ad litem of Minors, DARLENE, DANIEL JR., DUSSEL and DAISY GLEN, all surnamed FRIANEZA respondents. Ethelwoldo R. de Guzman for petitioners. Tomas B. Tadeo, Sr. for private respondents.

GRIO-AQUINO, J.: This case involves a contest over the estate of the late Dra. Esperanza Cabatbat wherein the protagonists are her sisters and the children of her deceased brothers on one hand, and the petitioner Violeta Cabatbat Lim who claims to be her only child. Petitioners Violeta Cabatbat Lim, her husband Liam Biak Chiao, and the Calasiao Bijon Factory assail the decision dated October 25, 1984 of the Intermediate Appellate Court, now Court of Appeals (AC-G.R. No. CV 67055), which affirmed the trial court's decision finding that petitioner Violeta Cabatbat Lim is not the off-spring, hence, not a legal heir of the late Esperanza Cabatbat. The private respondents, sisters of the late Esperanza Frianeza-Cabatbat, filed a complaint in the Court of First Instance of Pangasinan (Civil Case No. D-3841), praying for the partition of the estate of Esperanza Frianeza Cabatbat, who died without issue on April 23, 1977. Part of her estate was her interest in the business partnership known as Calasiao Bijon Factory, now in the possession of Violeta Cabatbat Lim who claims to be the child of the spouses Esperanza and Proceso Cabatbat. Esperanza Frianeza-Cabatbat was survived by her husband, Proceso Cabatbat, her sisters, Consorcia Maria, Benedicta, Bonifacia, all surnamed Frianeza and the children of her deceased brothers Daniel and Domingo. In their complaint, the private respondents alleged that Violeta

Cabatbat Lim is not a child of Esperanza, but was only a ward (ampon) of the spouses Esperanza and Proceso Cabatbat who sheltered and supported her from childhood, without benefit of formal adoption proceedings. Private respondents' evidence on the non-filiation of Violeta to Esperanza Cabatbat were: 1) the absence of any record that Esperanza Cabatbat was admitted in the hospital where Violeta was born and that she gave birth to Violeta on the day the latter was born; 2) the absence of the birth certificate of Violeta Cabatbat in the files of certificates of live births of the Pangasinan Provincial Hospital for the years 1947 and 1948, when Violeta was supposedly born; 3) certification dated March 9, 1977, of the Civil Registry coordinator Eugenio Venal of the Office of the Civil Registrar General, that his office has no birth record of Violeta Cabatbat alleged to have been born on May 26, 1948 or 1949 in Calasiao, Pangasinan; 4) certification dated June 16, 1977 of Romeo Gabriana, Principal II, that when Violeta studied in the Calasiao Pilot Central School, Proceso Cabatbat and Esperanza Cabatbat were listed as her guardians only, not as her parents; 5) testimony of Amparo Reside that she was in the Pangasinan Provincial Hospital on May 21,1948 to watch a cousin who delivered a child there and that she became acquianted with a patient named Benita Lastimosa who gave birth on May 26, 1948 to a baby girl who grew up to be known as Violeta Cabatbat. Pitted against the evidence of the plaintiffs are the evidence of herein petitioners consisting of. 1) Violeta Cabatbat's birth record which was filed on June 15,1948 showing that she was born on May 26, 1948 at the Pangasinan Provincial Hospital and that she is a legitimate child of the spouses Proceso and Esperanza Cabatbat; 2) testimony of Proceso Cabatbat that Violeta is his child with the deceased Esperanza Frianeza; 3) testimony of Benita Lastimosa denying that she delivered a child in the Pangasinan Provincial Hospital and that Violeta Cabatbat Lim is that child; 4) the marriage contract of Violeta and Lim Biak Chiao where Esperanza appeared as the mother of the bride; 5) Deed of Sale dated May 14, 1960, wherein the vendee Violeta Cabatbat, then a minor, was represented and assisted by her "mother," Dra. Esperanza Cabatbat; and 6) another Deed of Absolute Sale dated April 21, 1961, wherein Violeta Cabatbat was assisted and represented by her "father," Proceso Cabatbat. Upon the evidence, the trial court held on August 10, 1979 that Violeta Cabatbat is not a child by nature of the spouses Esperanza and Proceso Cabatbat and that hence, she is not a legal heir of the deceased Esperanza Cabatbat. The dispositive portion of the trial court's decision reads: WHEREFORE, judgment is hereby rendered as follows: (1) Finding that defendant VIOLETA CABATBAT LIM is not a child by nature of the spouses, decedent Esperanza Frianeza and defendant Proceso Cabatbat, and not a compulsory heir of the said decedent; (2) Declaring that the heirs of the decedent are her surviving husband, defendant Proceso Cabatbat and her sisters, plaintiffs Consorcia MARIA, BENEDICTA alias JOVITA, and BONIFACIA alias ANASTACIA, all surnamed FRIANEZA her brothers deceased DANIEL FRIANEZA represented by his surviving spouse, Adela Vda. de Frianeza, and their children, Darlene, Daniel, Jr., Dussel and Daisy Glen, all surnamed FRIANEZA and deceased DOMINGO

FRIANEZA represented by his surviving spouse Decideria Q. Vda. de Frianeza and their children, Francisco, Dona, Vilma and Decideria, all surnamed FRIANEZA (3) Finding that the estate left by the decedent are the thirty properties enumerated and described at pages 13 to 19 supra and an equity in the Calasiao Bijon Factory in the sum of P37,961.69 of which P13,221.69 remains after advances obtained by the deceased during her lifetime and lawful deductions made after her death; (4) That of the real properties adverted to above, three-fourth (3/4) pro- indiviso is the share of defendant Proceso Cabatbat, as the surviving spouse, one-half () as his share of the conjugal estate and one-half () of the remaining one-half as share as heir from his wife (decedent's) estate, while the remaining one-half () of the other half is the group share of the heirs of the brothers and sisters of his wife and of the children of the latter if deceased, whose names are already enumerated hereinbefore in the following proportions: one-sixth (1/6) each pro-indiviso to Consorcia Maria, Benedicta alias Jovita, and Bonifacia alias Anastacia; one-sixth (1/6) to Adela B. Vda. de Fraineza Darlene, Daniel, Jr., Dussel and Daisy Glen, as a group in representation of deceased brother DANIEL FRIANEZA and one. sixth (1/6) to Decideria Q. Vda. de Frianeza, Francisco, Dona, Vilma and Decideria as a group in representation of deceased brother DOMINGO FRIANEZA (5) That of the balance of the equity of the deceased in the CALASIAO BIJON FACTORY in the sum of P13,221.69, three-fourths (3/4) or P9,916.29 is the share of Proceso Cabatbat as surviving spouse and as heir of his deceased wife, and the remaining one-fourth (1/4) to the plaintiffs under the sharing already stated in the preceding paragraph; (a) but because defendant Proceso Cabatbat has overdrawn his share he is ordered to return to the estate the sum of P796.34 by depositing the same with the Clark of Court; and (b) defendant Violeta Cabatbat Lim, not being an heir, is ordered to return to the estate the sum of P2,931.13 half of what she and her codefendant Proceso Cabatbat withdrew from the equity of the deceased under Exhibit 29, receipt dated April 30, 1977; (6) Ordering jointly defendant a Proceso Cabatbat and Violeta Cabatbat Lim to pay attorney's fees in the sum of P5,000.00, the sum of P4,000.00 from defendant Proceso Cabatbat and Pl,000.00 from defendant Violeta Cabatbat Lim, and litigation expenses in the sum of Pl,000.00 from defendant Proceso Cabatbat and P200.00 from defendant Violeta Cabatbat Lim, to the plaintiffs, and to pay the costs. SO ORDERED. (pp. 236-239, Record on Appeal.) Petitioners appealed to the Intermediate Appellate Court which affirmed the decision of the trial court on October 25, 1984. A motion for reconsideration filed by the petitioners was denied by the Intermediate Appellate Court. Petitioners have elevated the decision to Us for review on certiorari, alleging that the Intermediate Appellate Court erred:

1. 2. 3. 4.

In finding that petitioner is not the child of Prospers and Esperanza Cabatbat; In ignoring the provisions of Section 22 of Rule 132, Rules of Court; In not considering the provision of Article 263 of the New Civil Code; In disregarding Exhibits 8, 9, 10, and 11 of petitioner Violeta Cabatbat Lim

Petitioners' first and fourth assignments of error raise factual issues. The finding of the trial court and the Court of Appeals that Violeta Cabatbat was not born of Esperanza Cabatbat is a factual finding based on the evidence presented at the trial, hence, it is conclusive upon Us. Well entrenched is the rule that "factual findings of the trial court and the Court of Appeals are entitled to great respect" (Vda. de Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705). Section 22, Rule 132 of the Rules of Court which provides that: "Where a private writing is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given" does not apply to petitioners' Exhibit "5," the supposed birth registry record of defendant Violeta Cabatbat showing that she was born on May 26,1948, at the Pangasinan Provincial Hospital in Dagupan City, and that her father and mother are Proceso Cabatbat and Esperanza Frianeza, respectively. In rejecting that document, the trial court pointedly observed: This is very strange and odd because the Registry Book of admission of the hospital does not show that Esperanza Frianeza was ever a patient on May 26, 1948. Indeed, Esperanza Frianeza was never admitted in the hospital as an obstetrics case before or after May 26, 1948, that is from December 1, 1947 to June 15, 1948 (Stipulation of Facts, Pre-Trial Order of May 23, 1977, Record on Appeal, p. 117). On May 26, 1948, the day defendant Violeta Cabatbat was alleged to have been delivered by Esperanza Frianeza in the Pangasinan Provincial Hospital, the records of the hospital show that only one woman by the same of the Benita Lastimosa of Tagudin, Ilocos Sur, not Esperanza Frianeza, gave birth to an illegitimate child who was named by her mother Benita Lastimosa as Baby Girl Lastimosa (Exhibit S. Plaintiffs' Folder of Exhibits, p. 39, Record on Appeal, pp. 117118). Furthermore, the record of birth certificates of Pangasinan Provincial Hospital for the years 1947 and 1948 does not carry the birth certificate of defendant Violeta Cabatbat and the only birth certificate in the file of birth certificates of the hospital for May 26, 1948 is that of Baby Girl Lastimosa whose mother's name is Benita Lastimosa. (pp. 3-4, CA Decision, pp. 13-14, Record on Appeal.) Furthermore, the absence of a record of the birth of petitioner Violeta Cabatbat in the Office of the Civil Registrar General, puts a cloud on the genuineness of her Exhibit 5. Petitioners' recourse to Article 263 of the New Civil Code is not well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their

inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. WHEREFORE, the petition is denied for lack of merit. The appealed decision is affirmed, but with modification of paragraphs 2 and 4 of the dispositive portion thereof, by excluding the widows Adela B. Vda. de Frianeza and Decideria Q. Vda. de Frianeza, who are not legal heirs of Esperanza Frianeza Cabatbat from participating with their children and the surviving sisters of the deceased in the one-fourth share of the estate pertaining to the latter under Article 1001 of the Civil Code. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-29771 May 29, 1987

CONSOLACION LUMAHIN DE APARICIO, Accompanied by her husband BENITO APARICIO, plaintiffs-appellees, vs. HIPOLITO PARAGUYA, defendant-appellant.

GANCAYCO, J: Trinidad Montilde, a young lass of Tubigon, Bohol had a love affair with a priest, Rev. Fr. Felipe Lumain and in the process she conceived. When she was almost four (4) months pregnant and in order to conceal her disgrace from the public she decided to marry Anastacio Mamburao. Father Lumain solemnized their marriage on March 4, 1924. 1 They never lived together as man and wife. On September 12, 1924, 192 days after the marriage, Trinidad gave birth to Consolacion Lumain. As shown by her birth certificate her registered parents are Trinidad and Anastacio. 2 On October 31, 1936, Fr. Lumain died but he left a last will and testament wherein he acknowledged Consolacion as his daughter and instituted her as the sole and universal heir of all his property rights and interests. 3 This was duly probated in the Court of First Instance of Bohol on June 11, 1938 and on appeal it was affirmed by the Court of Appeals. 4 Soon after reaching the age of majority Consolacion filed an action in the Court of First Instance of Bohol against Hipolito Paraguya for the recovery of certain parcels of land she claims to have inherited from her father Fr. Lumain and for damages. After trial on the merits a decision was rendered on July 6, 1962, the dispositive part of which reads as follows:

PREMISES CONSIDERED, the Court renders judgment: (a) Declaring that plaintiff is entitled to the possession of the third parcel of land described in the 6th amended complaint, with all the improvements. If defendant Hipolito Paraguya is possessing this property, he is hereby ordered to vacate it and deliver its possession to plaintiff; (b) Declaring defendant Hipolito Paraguya owner of the second parcel of land described in the 6th amended complaint, with all the improvements. If plaintiff is possessing this land or any portion thereof, she is hereby ordered to vacate said property and to deliver its possession to defendant Paraguya; (c) Declaring defendant Hipolito Paraguya owner of Portions B and A of the sketch Exhibit E-1, with all the improvements. If plaintiff is possessing these portions or any part thereof, she is hereby ordered to vacate the same and to deliver its possession to defendant Hipolito Paraguya; (d) Declaring that plaintiff shall be entitled to the possession of Portions H, F and G, of Sketch Exhibit E-1, with all the improvements. If defendant is possessing these portions or any part thereof, he is hereby ordered to vacate them and to deliver the possession thereto plaintiff Consolacion Lumain Aparicio; and (e) Sentencing plaintiff to pay the Court the docketing fees and all other legal expenses.

The present judgment is rendered without special pronouncement as to costs. 5 Not satisfied therewith, the defendant now interposed this appeal to the Court of Appeals alleging the trial court committed the following errors: I THE LOWER COURT ERRED IN DECLARING THAT THE PLAINTIFF-APPELLEE IS ENTITLED TO THE POSSESSION OF PORTION G OF THE SKETCH EXHIBIT "E-I," WITH ALL THE IMPROVEMENTS. II THE LOWER COURT ERRED IN DECLARING THAT PLAINTIFF- APPELLEE IS A NATURAL CHILD OF THE LATE REV. FR. FELIPE LUMAIN. III THAT THE LOWER COURT ERRED IN NOT DECLARING THAT THE PLAINTIFFAPPELLEE IS LIABLE TO PAY THE DEFENDANT-APPELLANT FOR MORAL DAMAGES AS ALLEGED IN THE COUNTER-CLAIM. 6

In a resolution of September 27, 1968, the Court of Appeals forwarded the records of this case to this Court as appellant does not question the findings of facts of the court a quo but only the correctness of the conclusions drawn therefrom. 7 The undisputed findings of facts of the trial court are: It is a fact admitted in the evidence of both parties that the spouses Roman Lumain and Filomena Cosare were the owners of the parcels of land Identified as first, second and third parcels in the sixth amended complaint. The testimonial evidence has established the following facts. The spouses Roman Lumain and Filomena Cosare and their children Rev. Fr. Felix Lumain and Macario Lumain are dead. This fact is corroborated by the following death certificates: (a) Exhibit I death certificate showing that on August 20, 1929 Roman Lumain, husband of Filomena Cosare, was buried in the Catholic Cemetery of Tubigon, Bohol; (b) Exhibit J death certificate showing that Filomena Cosare, wife of Roman Lumain, was buried on October 6, 1934 in the Catholic Cemetery of Tubigon, Bohol; (c) Exhibit K death certificate showing that Rev. Fr. Felipe Lumain, son of Roman Lumain and Filomena Cosare, was buried on November 3, 1936 in the Catholic Cemetery of Tubigon, Bohol; (d) Exhibit L death certificate showing that Macario Lumain, husband of Ceferina Falcon and son of the spouses Roman Lumain and Filomena Cosare, was buried on May 20, 1941 in the Catholic Cemetery of Tubigon, Bohol. It appears proven at the same time that Ceferina Falcon de Lumain died on June 29, 1953, as shown by Exhibit M. Several witnesses had declared that the spouses Roman Lumain and Filomena Cosare were possessing as owners and enjoying the products of the three parcels of land described in the complaint; that after their death, it was their two children Rev. Fr. Felipe Lumain and Macario Lumain who succeeded them in the possession of the same property. Defendant Paraguya disclaims no right over the third parcel of land described in the 6th amended complaint. As a matter of fact, in the course of the trial the Court rendered judgment declaring plaintiff Consolacion Lumain Aparicio owner of said property. This judgment, however, was set aside because plaintiff's counsel manifested that he would present evidence for damages, in connection with this property which, according to plaintiff, had been possessed by defendant Paraguya. Defendant claims right over the second parcel of land described in the 6th amended complaint, alleging that he had bought it from the late Roman Lumain, the admitted original owner. In

support of his contention, defendant offered in evidence Exhibit 7 which is a deed of pacto de retro sale for the sum of P l 70. The parcel of land sold in this document is described as follows: Por el Noreste linda con el terreno del vendedor, por el Sureste con el de Macario Lumain, por Suroeste con el del vendedor y por el Noroeste con el del mismo vendedor y con el rio Bateria. If the boundaries of the land mentioned in Exhibit 7 were compared with the boundaries of the second parcel of land described in the 6th amended complaint, one would not hesitate to conclude that this parcel of land described in the complaint is the same property sold to defendant Hipolito Paraguya on August 1, 1928, for the sum of Pl70.00, by means of Exhibit 7. It is true that vendor Roman Lumain reserved the right to repurchase the property at any time, but in the light of the provisions of Article 1508 of the old Civil Code which is the law applicable to the case, it is obvious that Roman Lumain and his heirs have lost the right to redeem the property. Article 1508 of the old Civil Code provides: The right referred to in the next preceding article, in default of an express agreement shall endure four years, counted from the date of the contract. Should there be an agreement, the period shall not exceed ten years. Although the area of the land mentioned in Exhibit 7 is 13,000 square meters, while the area of the land described as Parcel 2 is 14 ares and 64 centares or 1,464 square meters, we think that this discrepancy is just a result of mistake. Our Supreme Court ruled that the correct boundaries of a land prevail over the discrepancy as regards its area. We, therefore, conclude that the property described as second parcel of land in the 6th amended complaint belongs to defendant Hipolito Paraguya. Although Exhibit 7 is a private document we entertain no doubt as to its authenticity established by testimonial evidence of defendant. Moreover, Macario Lumain, son of Roman Lumain, had signed as instrumental witness to this document and if we compared his signature on Exhibit 7 with his signatures on the documents Exhibits C- 1, C-2, C-3, C-4 and C-5 offered in evidence by plaintiff, there would be no doubt that the signature affixed on Exhibit 7 is the authentic signature of Macario Lumain. In connection with this case, the Court issued on August 7, 1952 the following order (Exh. D): When this case was called today, Atty. Diosdado R. Delima and Conrado D. Marapao, counsel for the parties, submitted the following agreement: Comes the undersigned attorney and respectfully proposes for an appointment of a Commissioner of the Court for the following purposes: 1. To localize Parcel II of the Second Amended Complaint under Tax No. 6862 superseded by Tax No. 20836 in the name of Roman Lumain;

2. To localize all the portions in the said parcel which are claimed by Hipolito Paraguya and to make a sketch of the portions showing its relative positions with one another, showing its dimensions in meters, and showing its relative position in relation to the whole parcel; 3. To localize the portion in same parcel which are claimed by Ceferina Falcon and to make a sketch of the said portion showing its dimensions in meters and showing further its relative position in relation to the whole parcel. The expenses of the Commission of the court to be shared pro rata by Consolacion Lumain Vallesteros, Ceferina Falcon and Hipolito Paraguya. WHEREFORE, it is respectfully prayed that the above enumerated proposals be granted by the Court and a Commissioner duly appointed to carry out. Tagbilaran, Bohol, August 7,1952. (Sgd.) DIOSDADO REYES DELIMA Attorney for the Plaintiff I AGREE: (Sgd.) CONRADO MARAPAO Attorney for the Defendants Ceferina Falcon and Hipolito Paraguya IN VIEW WHEREOF, the court hereby appoints Mr. Genaro Galon as Commissioner in charge to localize the properties in accordance with the foregoing agreement. Mr. Galon shall submit his report within the period of fifteen days. Before making this localization, Mr. Galon shall notify the attorneys of both parties two weeks in advance. By agreement of the parties, the trial of this case is hereby postponed until further assignment. SO ORDERED. Given in open Court, Tagbilaran, Bohol, August 7, 1952. (Sgd.) HIPOLITO ALO Judge, 14th Judicial

District In compliance with this order, the appointed commissioner Genaro Galon submitted his report (Exhibit E); and attached thereto is the sketch marked Exhibit E-1. According to the report (Exhibit E), the land covered by tax declaration No. 20836-which is the first parcel of land described in the 6th amended complaint is represented in the sketch Exhibit E-1 by the space enclosed within the black lines. For clarification purposes the Court had marked with letters H, B, A, G and F the portions enclosed within the black lines.The space marked letter C, outside the black lines, represents the land of Macario Lumain, acquired later by defendant Hipolito Paraguya. Defendant Paraguya offered in evidence Exhibit 5, a deed of pacto de retro sale executed in his favor by the late Macario Lumain on December 6, 1937. This document describes the following parcel of land: El citado terreno es parte de la Declaracion No. 20836 a nombre de mi difunto padre Roman Lumain y linda por el Noreste con el del vendedor y mide 39.30 metros; por el Sureste finda con el del mismo vendedor y mide 67.90 metros; por el Suroeste linda con la carretera provincial y mide 27.00 metros y por el Noroeste que tiene cinco lados linda con el del mismo vendedor y mide por dichos cinco lados 81-60 metros. If we linked the land described in Exhibit 5 with Portion A of the sketch Exhibit E-1, which portion, according to the report of Commissioner Galon, was indicated by defendant Paraguya as property belonging to him, we would find that the land described in Exhibit 5 is the same Portion A of the sketch Exhibit E-1, taking into account the length of the sides of Portion A and the length of the sides of the land sold under Exhibit 5. Portion A is precisely the portion claimed by defendant, according to Commissioner's report. The authenticity of the signature of Macario Lumain on Exhibit 5 has been established by witnesses, and corroborated by documents Exhibits C- 1, C- 2, C-3, C-4 and C-5 offered in evidenced by plaintiff. The includible conclusion, therefore, is that Portion A of the sketch Exhibit E-1 was bought by defendant Hipolito Paraguya from Macario Lumain. Let us not lose sight of the fact that the land described in Exhibit 5 and Portion A of the sketch Exhibit E-I have Identical descriptions: On the NE is bounded by the land of Macario Lumain which was inherited by him from his father; on the SE by the same vendor Macario Lumain and provincial road; and on the NW by the same vendor. Macario Lumain has also lost the right to repurchase. The report of the commissioner Exhibit E also states that defendant Hipolito Paraguya claimed to be the owner of Portion B of the sketch Exhibit E-1. During the trial, Hipolito Paraguya maintained that on August 28, 1948 he bought from Raymundo Garduque a parcel of land by means of Exhibit 6- A. This document describes the property as follows:

Este terreno es parte de la Declaracion No. 20836 a nombre del difunto Roman Lumain. Y linda por el Norte, con el del difunto Macario Lumain; por el Este con el del difunto Roman Lumain; por el Sur, con la Carretero Provincial; y por el Oeste, con el del mismo difunto Roman Lumain. Defendant Paraguya further maintains that Raymundo Garduque had bought this property from Roman Lumain by means of Exhibit 6 which is translated into English in Exhibit 6-1. Exhibit 61 describes the property sold by Roman Lumain to Raymundo Garduque as follows: On the North, it is bounded by the rice field of Macario Lumain which adjoins the parcel of rice field of the vendor; on the East, land of vendor; on the South, is Provincial Road; and on the West, it is bounded by the land of the vendor. If we link the description of Exhibit 6-1 with the description of Portion B of the sketch Exhibit E-I, there would be no doubt that this Portion B is the same land sold by Roman Lumain to Raymundo Garduque, by means of Exhibit 6, bearing in mind that the boundaries of Portion B tally with the boundaries of the land described in Exhibit 6. We, therefore, conclude that Portion B also belongs to defendant Hipolito Paraguya. The report of the commissioner Exhibit E reads as follows: En complimiento a la orden de este Juzgado de fecha 7 de Agosto, 1952 en la causa arriba titulada el que subscribe como commissionado en dicho asunto, previa notificacion por escrito a ambas partes y a sus respectivos Abogados, se contituyo al barrio de Tangnan, Tubigon, Bohol para localizar el terreno bajo declaracion Tax No. 20836 a nombre de Roman Lumain y de las porciones reclamadas por Hipolito Paraguya y Ceferina Falcon Vda. de Lumain, y con asistencia de las partes se prodedio la localizacion de los mismos, de cuyo resultado, tiene la honra de someter a Su Senoria el adjurito croquis con los siguientes: 1. que la porcion limitada con lineas de tinta negra representa el terreno indicado por la demandante Consolacion M. Vallesteros, como terreno de Roman Lumain, bajo declaracion Tax No. 20836. 2. Que la pintada con lapiz encarnado representa la reclamada por Hipolito Paraguya bajo declaraciones Tax Nos. 13497 y 13919 de Hipolito Paraguya. 3. Que la pintada con lapiz azul, representation el terreno reclamado por Ceferino Falcon Vda. de Lumain. 4. Que la manchada con puntitos de lapiz azul, representa la porcion reclamada por Hipolito Paraguya, que segun el lo adquirio de Pelagio Torrefranca. 5. Que la porcion comprendida entre lineas de tinta negra angulos, A, B y C, representation el terreno descrito en la declaracion Tax No. 6862 en nombre de Roman Lumain de Acuerdo con su croquis correspondiente.

Es todo lo que al que subscribe puede informar a Su Senoria para su consideracion y efectos procedentes. Respetuosamente sometido. Tagbilaran, Bohol. 22 de Septiembre, 1952. (Fdo.) GENARO GALON Commisionado' Defendant Hipolito Paraguya claims right over portion G of the Sketch Exhibit E-1, which portion is within the space enclosed within the black lines of the sketch Exhibit E-1. Hipolito Paraguya maintains that he had bought this Portion G from Pelagio Torrefranca by means of a document which was lost. He offered, however, in evidence Exhibits 8 and 9, statements of the sister and brother of the deceased Pelagio Torrefranca to the effect that the latter had sold a parcel of land to Hipolito Paraguya. But if we examine the sketch Exhibit E-1 we will find that the land of Pelagio Torrefranca is outside the land of Roman Lumain enclosed within the black lines. The land of Pelagio Torrefranca is even intercepted by other lands belonging to Juan Acidillo and Valerio Roba. If we also examine the plan Exhibit 1 1 of the land of Roman Lumain sureyed by a survevor, we will find that the land of Roman Lumain is bounded on the North by Valerio Roba and Jorge Acidillo. The land of Pelagio Torrefranca is not mentioned and possibly it is on the North of the lands of Valerio Roba and Jorge Acidillo. Consequently, the land bought by defendant Hipolito Paraguya from Pelagio Torrefranca is outside the land of Roman Lumain described in the plan Exhibit 11. It must not be forgotten that this plan was offered in evidence by defendant. In the light of the foregoing, we conclude that out of the first parcel of land described in the 6th amended complaint defendant had only acquired Portions A and B described in the plan Exhibit E-1. We do not overlook the fact that Macario Lumain, as co-owner of the first parcel of land described in the 6th amended complaint could not select any portion thereof as his own, as long, as there was no actual partition of the property. We believe, however, that it would be more advantageous to the plaintiff to disregard this procedure, since a partition would be more costly for her, for in such case defendant would claim reimbursements for necessary and useful expenses. Moreover, the sales took place almost 10 years before the filing of the complaint, and it would be unjust for defendant Paraguya to suffer the adverse effects of the laches committed by plaintiff. Plaintiff maintains that she is entitled to inherit the property of the deceased Rev. Fr. Felipe Lumain on the ground that she had been recognized as daughter of the latter in his testament

Exhibit A-1 which has been duly probated by this Court and the Court of Appeals, as shown from Exhibit A- 2. Defendant, on the other hand, maintains that plaintiff is not entitled to inherit the property of the deceased Rev. Fr. Felipe Lumain for the reason that she is an adulterous child. He further maintains that the acknowledgment of plaintiff by the late Fr. Felipe Lumain is null and void she being not a natural child of the latter. In support of this contention, defendant offered in evidence Exhibit 2 which is the marriage certificate of Anastacio Mamburao and Trinidad Montilde, mother of plaintiff. According to this certificate, the marriage of both spouses took place on March 4, 1924. Defendant also offered in evidence Exhibit I showing that plaintiff was born on September 12, 1924. Taking into account both documents, it can be said that plaintiff was born six months after her mother's marriage to Anastacio Mamburao. During the trial Trinidad Montilde declared that she had never lived together with her husband and at present the latter is living with another woman. Bearing in mind the date of the birth of plaintiff, it is evident that her mother Trinidad Montilde was still single at the time she was conceived. It is a legal presumption that plaintiff is the daughter of the spouses Anastacio Mamburao and Trinidad Montilde, but bearing in mind that this presumption is disputable and was successfully overcome by Trinidad Montilde, plaintiff's mother, we find no other avenue than to declare that plaintiff is a natural child of the late Rev. Fr. Felipe Lumain. Consequently, she can be acknowledged by the latter as his own child. But in the remote possibility that plaintiff is not a natural child of the deceased Fr. Felipe Lumain, we still maintain that, under the latter's will (Exhibit A-1), she is entitled to claim the disputed property, she having been instituted in the will as universal heir. This document contains the following provisions: 4. Dono tambien a la mencionada nina, Consolacion M. Lumain, mi homestead consistentente en una parcela de terreno de 24 hect. situada en el barrio de Calatrava, Carmen, Bohol, con todas sus mejoras; todas Acciones e interesesen la JAGNA ELECTRIC SERVICE CO., Jagna Bohol; todos los bienes muebles e inmuebles que me corespondan de la herencia de mis padres; y todoes los bienes e intereses que yo consiga en lo futuro (The following words are written in pencil without initial of the testator: Estoy asegurado por la Insular Life Assurance Co. en la cantidad de Dos Mil Pesos, y la beneficiaria de mi Poliza es la misma consolacion.) Is plaintiff entitled to claim the entire first parcel of land described in the 6th amended complaint? Let us not forget that the spouses Roman Lumain and Filomena Cosare died leaving two legitimate children: Rev. Fr. Felipe Lumain and Macario Lumain. Let us not either forget that Fr. Lumain died ahead of Macario Lumain. Under the circumstances, therefore, Fr. Lumain did not become the owner of the share of Macario Lumain, he having died ahead of the latter. Macario Lumain could not either inherit the share of his brother, because the latter had instituted the plaintiff as his legal heir. Plaintiff, on the other hand, cannot inherit the property of the deceased Macario Lumain in view of the following provisions of Article 943 of the old Civil Code:

A natural or a legitimated child has 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. In the light of the foregoing, it is obvious that, after the death of Fr. Felipe Lumain, plaintiff and Macario Lumain became co-owners of all the properties left by their deceased parents. Consequently, plaintiff is only an owner of one-half (1/2) undivided share of said properties and the remaining undivided half belongs to the heirs of the late Macario Lumain who took no intervention in this case. And because of this fact, the Court can not render a judgment determining the ownership of the property in question, on account of the fact that the heirs of the deceased Macario Lumain are not parties to this case. Considering, nevertheless, that a co-owner can file an action to recover the possession of a property from any stranger, the Court believes that this aspect can be determined by the Court in its judgment. It appears from the record that plaintiff was exempted from payment of legal fees on account of her alleged poverty. But it appears from the evidence that she is not a pauper, she having several properties not involved in the present action. She shall therefore, be sentenced to pay the Court the docketing fees and all other legal expenses. Plaintiff's evidence regarding damages is insufficient, for the reason that this court can not determine exactly the source of those damages. As may be seen from this decision, plaintiff had filed six complaints and had been changing the lands she was claiming, as well as the defendants, thus showing that she had filed at random her actions. Because of this, the Court cannot determine what property shall be the basis of damages and who are the persons liable. 8 Under the first assigned error appellant contends that portion G of the sketch Exhibit E-1 with all the improvements belongs to him and that he is entitled to its possession. In support thereof appellant argues This particular portion of land known as portion G of the sketch Exhibit 'E-1' declared in the name of the real owner of the defendant-appellant herein under Tax Dec. No. R-13497, (Exhibit '9-b') formerly under Tax Dec. No. 23216 (Exhibit '9-a') in the name of the former owner Rev. Father Pelagio Torrefranca is outside the land in question. (See IV last paragraph of p. 23 & 24; letter B last paragraph of p. 31 and letter C lst paragraph of p. 32, Record on Appeal; (See also IV 2nd paragraph of p. 41, Record on Appeal). We find support in this contention from the report of the Commissioner (Exhibit "E") in paragraph 2 and 4 of said report: (See Record on Appeal, pp. 59-60). Par. 2 of the Commissioner's Report (Exhibit "E") states: Que la pintada con lapiz encarnado, representa la reclamada por Hipolito Paraguya bajo declaraciones Tax Nos. 13497 y 13919 de Hipolito.' (p. 60, Record on Appeal)

Par. 4 of the said Commissioner's Report (Exhibit'E') states: Que la manchada con puntitos de lapiz azul, representa la porcion reclamada por Hipolito Paraguya, que segun el lo adquirio de Pelagio Torrefranca (P. 60, Record on Appeal) The name of Pelagio Torrefranca or the land of Pelagio Torrefranca is not mentioned because the Blueprint (Exh.: "11") was made long time ago in 1910 before Pelagio Torrefranca bought the land from Valerio Roba. (the former owner). Exh.: "11" is offered in evidence by the defendant Hipolito Paraguya to show to the Court that the land of Pelagio Torrefranca, Identified as G (in Exh. "E-l") is outside the land of Roman Lumain as can be seen by comparing the blueprint (Exh. "11") and the sketch (Exh. "E-l"). If the land of Pelagio Torrefranca which is now owned by the defendant Hipolito Paraguya (Letter G in Exh. "E-l") is outside the land of Roman Lumain (outside of heavy lines of Blueprint Exh. "11" and sketch of Galon Exh. "E-l") then the plaintiff can not be given such land for she is only claiming interest in and to that parcel of land of Roman Lumain bearing Tax No. 20836. In the original complaint as well as the several amended complaints, the six amended complaint and supplemental complaint Tax Dec. No. 23216 of the late Rev. Father Pelagio Torrefranca (now owned by defendant-appellant Paraguya, Letter G in Exh. "E-l") is not included. Tax No. 23216 has been revised to R-13497 in defendant-appellant's name. Still this land Identified as Letter G in Exh. "E-1" now under Tax Dec. No. R-13497 is not included in all the plaintiffs' complaint (see Exhibits "9-a" and "9-b," 10 and 10-a to 10-g). In the Blueprint (Exh. "11") the name of Valerio Roba appeared as the owner of that parcel known as Portion G (as shown in Exh. "E-1") for at that time in 1910 Valerio Roba was still the owner. The blueprint (Exh. "11") was made and surveyed in 1910. But after 1910 Pelagio Torrefranca acquired this land (Portion G) from Valerio Roba. This particular Portion G is now declared under Tax Dec. No. R- 13497 in the name of defendant-appellant Hipolito Paraguya and formerly declared under Tax Dec. No. 23216 in the name of the former owner Pelagio Torrefranca (See Exhibits "9-a", "9-b", "l0" and "10-a" to "10-g" and Exhibits "8" and "9"). The Court should take notice that the land in the name of former owner Valerio Roba (known as Portion G in Exhibit "E-l") is the land acquired and owned by Rev. Father Pelagio Torrefranca and later sold by Rev. Father Pelagio Torrefranca to the defendant-appellant Hipolito Paraguya is outside the land (outside the Black Lines of Exhibits "11" and "E-1") of the late Roman Lumain as shown in the blue print (Exhibit "ll") a map of the land of the late Roman Lumain made and surveyed in 1910. There is no question therefore that this Portion G (shown in Exh. "E-l") is not the land of the late Roman Lumain, hence outside the land in question. The Court has no jurisdiction over this land Portion G as shown in Exhibit "E- l" for it is not a part of the land of Roman Lumain whose properties are the ones in question (See Exhibits "11" and "E-1" These two Exhibits "11" and "E-1" should be compared as they are closely connected to each other.) This is supported by the findings of the Lower Court found on page 61, lst Sentence of the 3rd Paragraph of the Decision, (p. 61 Record on Appeal) which states: 'But if we examine the sketch Exhibit 'E-l' we will find the land of Pelagio Torrefranca is outside the land of Roman Lumain

enclosed within the black lines.' And on page 62, 1st Sentence of the 1st Paragraph of the Decision (p. 62, Record on Appeal) which states: 'Consequently, the land bought by defendant Hipolito Paraguya from Pelagio Torrefranca is outside the land of Roman Lumain described in the plan Exhibit 11. 9 We find the contention to be well-taken. Appellees confirmed that said portion G of Exhibit E-1 which appellant bought from Pelagio Torrefranca is outside the land of Roman Lumain enclosed with black lines of Exhibit E- I, and thus is outside the land of Roman Lumain as described in Exhibit 11. 10 Under the second assigned error appellant points out that appellee Consolacion Lumain is the legitimate child of spouses Anastacio Mamburao and Trinidad Montilde as she was born on September 12, 1924, 192 days after the marriage of said spouses citing the provision of Article 255 of the Civil Code (then Article 108 of the Spanish Civil Code) ART. 255. Children born after one hundred and eighty days following the celebration of the marriage and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband;

(2) By the fact that the husband and wife were living separately in such a way that access was not possible; (3) By the serious illness of the husband.

Appellant further argues there is no evidence of physical impossibility on the part of husband Anastacio to have access to his wife Trinidad in the first 120 days of the 300 days which preceded the birth of the child. Under Article 115 of the Spanish Civil Code, now Article 265 of the Civil Code, it is provided that: The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. (Italics supplied.) Appellant concludes appellee Consolacion is the legitimate child of said Mamburao spouses as shown by the birth certificate. 11 Appellant also avers that the declarations of Trinidad Montilde against the legitimacy of appellee Consolacion cannot prevail over the presumption of legitimacy under the provisions of Article 109 of the Spanish Civil Code, now Article 256 of the Civil Code.

However, the Court finds it unnecessary to determine the paternity of appellee Consolacion in this case. In the last will and testament of Fr. Lumain he not only acknowledged appellee Consolacion as his natural daughter but designated her as his only heir. Said will was duly probated in Court. As Fr. Lumain died without any compulsory heir, appellee Consolacion is therefore his lawful heir as duly instituted in his will. 12 One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.13 The third assigned error wherein appellant contends appellee should pay him moral damages is obviously without merit. Appellee merely pursued an honest claim to the property in question. No bad faith had been imputed nor had the alleged damages suffered been established. The essential ingredient of moral damages is proof of bad faith and the fact that moral damages was suffered as shock, mental anguish, or anxiety although the amount of damages suffered need not be shown. 14 WHEREFORE, with the only modification that portion G of sketch Exhibit E-1 and its improvement of the questioned property is hereby declared to be owned by appellant who is entitled to its possession, the judgment appealed from is hereby AFFIRMED in all other respects without pronouncement as to costs. SO ORDERED.