Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-770 April 27, 1948

ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent. Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent. HILADO, J.: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34). Petitioner makes four assignments of error in his brief as follows: 1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. 4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party

applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience — the evidence established that the public needed the ice plant — was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . .

737) states that in the broad sense of the term. (Ala. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. Manresa (Vol. and on page 748 of the same volume we read: However. 271. 10 of article 334 and article 336 of the Civil Code.) Another important question raised by petitioner is whether the estate of Pedro O. property includes. is a generic term. The Court. 50.It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". Pacific. can not be exercised but by him in representation of the estate for the benefit of the creditors. Douglas vs. Fragrante is a "person" within the meaning of the Public Service Act. Our own cases inferentially recognize the correctness ." 2 Rapalje & L.) 404. Law Dict. 763. 4 Cal. 57 Am. A natural person is a human being. 6 N. and "the certificate of the railroad commission permitting the operation of a bus line". Bank vs. 55. p. Andrews. 107 Ind. etc. it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. (2) a collection of property to which the law attributes the capacity of having rights and duties. "Examples are the estate of a bankrupt or deceased person. The latter class of artificial persons is recognized only to a limited extent in our law. 7 N. Corpus Juris (Vol. Rep. p. and the heirs of the decedent. E. as estate or interest) have also been declared to include every species of title. The estate of the decedent is a person in legal contemplation.. if any. devisees or legatees. The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. 914. etc. But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which. 77. This intention (contention) cannot prevail. 8 Port. 954. and embrace rights which lie in contract. and includes artificial as well as natural persons. respectively. a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. State. Abbot.. . 6th ed.. Artificial persons include (1) a collection or succession of natural persons forming a corporation. consider as immovable and movable things rights which are not material. (Vol. per Elliott. III. First Series. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. 5325). "The word "person" says Mr. 304. 6. these terms (real property. being placed under the control and management of the executor or administrator. "an option". states the following doctrine in the jurisdiction of the State of Indiana: As the estate of the decedent is in law regarded as a person. "in its legal signification. whether executory or executed. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. disposed of this objection as follows: . (Emphasis supplied.. 54. It said in another work that 'persons are of two kinds: natural and artificial. Co.. 11) says that No. inchoate or complete. among other things. J. Dict. The same eminent commentator says in the cited volume (p. . p. Words and Phrases. Billings vs. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission. Planters'." 2 Abb. E.

Concepcion. or what was the nature of their respective interest.804. 13. 2 Phil. However. Among the most recent cases may be mentioned that of "Estate of Mota vs. 43 Ind. and. article 661 of the Civil Code was abrogated. to exercise those rights and to fulfill those obligations of the deceased. And if the same legal fiction were not indulged. The reason . 46. let alone those defrayed by the estate thereafter. Under the present legal system. Collins. Chio-Taysan. 712. The interest which natural persons have in it is not complete until there has been a due administration. (107 Ind. that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction. and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent. and not the natural persons having diverse interests in it. although natural persons as heirs. — the estate — and not the natural persons who have direct or contingent interest in it. for they declare that it is sufficient. as held in Suiliong & Co. there would be no juridical basis for the estate. for. Fragrante is considered a "person". vs. In that case. 54. after the enactment of the Code of Civil Procedure. it has been the constant doctrine that it is the estate or the mass of property. or creditors. .. Ginn vs. represented by the executor or administrator. It was so held by this Court in Barrios vs. since ha cannot be presumed to have known who those persons were. instead of the heirs directly. We perceive no difficulty in avoiding such a result. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. to our minds. 55. the forgery is committed after the death of a person whose name is forged. 12 Phil. Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure.69 . devises. as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons. . not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime. 22. and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . 717. such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased.. the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. 44. the artificial creature is a distinct legal entity. as here. 6 N. . Dolor.000.of the definition given by the authors from whom we have quoted.) In the instant case there would also be a failure of justice unless the estate of Pedro O. it seems reasonable that the estate of a decedent should be regarded as an artificial person. there would be a failure of justice in cases where. naming him. and this is a result to be avoided if it can be done consistent with principle. in pleading a claim against a decedent's estate. 271. The fraudulent intent is against the artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made. wherein the principal plaintiff was the estate of the deceased Lazaro Mota. . 914-915. the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245. have an interest in the property. Unless we accept this definition as correct.00 as found by the commission. 56 Phil. rights and assets left by the decedent. for they might not have been flesh and blood — the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent.E.. for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35. . to designate the defendant as the estate of the deceased person.

Hence. particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations. as announced in Billings vs. Dictionary. him may be paid. . Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act. Within the Philosophy of the present legal system. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case. copartnerships. we hold that within the framework of the Constitution. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana.and purpose for indulging the fiction is identical and the same in both cases. as for instance. and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which. . This is why according to the Supreme Court of Indiana in Billings vs. for certain purposes. we find no sound and cogent reason for denying the application of the same fiction to his citizenship. for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law. State. among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties". the estate of Pedro O. as amended. The outcome of said proceeding. include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. any more than he could have done if Fragrante had lived longer and obtained the desired certificate. Within the framework and principles of the constitution itself. and any surviving rights may be exercised for the benefit of his creditors and heirs. or the immunity from unreasonable searches and seizures. of course. no less than natural. or joint-stock companies constituted and organized under the laws of the Philippines". to cite just one example. We take it that it was the intendment of the framers to include artificial or juridical. would in the end inure to the benefit of the same creditors and the heirs. The fiction of such extension of his citizenship is grounded upon the same . when the Supreme Court of said State said: . if successful. Even in that event petitioner could not allege any prejudice in the legal sense. the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons. supra. under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons. the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. and surviving. persons in these constitutional immunities and in others of similar nature. . Among these artificial or juridical persons figure estates of deceased persons. the estate of a bankrupt or deceased person. It seems reasonable that the estate of a decedent should be regarded as an artificial person. State. Petitioner raises the decisive question of whether or not the estate of Pedro O. the underlying reason for the legal fiction by which. an injustice would ensue from the opposite course. . associations. and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by. supra. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . respectively. 954. consisting in the prosecution of said application to its final conclusion. citing 2 Rapalje & L. . As stated above.

which does not exist here. or repeal by Congress when the public interest so requires. sixty per centum of the capital of which is owned by citizens of the Philippines. which he has already made in the ice plant. . If for reasons already stated our law indulges the fiction of extension of personality. Rizal. His estate was that of a Filipino citizen. or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines.principle. C. and that is. dissenting: Commonwealth Act No. certificate. Justice Feria voted with the majority. if he had lived.. Upon the whole. The limitation is in accordance with section 8 of Article XIV of the Constitution which provides No franchise. In the absence of a contrary showing. in harmony with the constitution: it is so adjudged and decreed. firm or corporation. and as such. Moran. We can perceive no valid reason for holding that within the intent of the constitution (Article IV). The situation has suffered but one change. he would have obtained from the commission the certificate for which he was applying. Paras.000.. alteration. Pablo. and if they are not. from the Public Service Commission of this Court. I hereby certify that Mr. its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. Decision affirmed. Padilla and Tuason. without costs. his death. as the fiction of the extension of personality. Fragrante was a Filipino citizen. Fragrante should be considered an artificial or juridical person herein. except under the condition that it shall be subject to amendment. JJ. his heirs may be assumed to be also Filipino citizens. as amended. Briones. So ordered. The fiction is made necessary to avoid the injustice of subjecting his estate.. if for such reasons the estate of Pedro O. nor such franchise. Fragrante must be deemed extended.J. J. solely by reason of his death to the loss of the investment amounting to P35. concur. Pedro O. not counting the other expenses occasioned by the instant proceeding. certificate or authorization be exclusive in character or for a longer period than fifty years. 4572 of the Public Service Commission to its final conclusion. we are of the opinion that for the purposes of the prosecution of said case No. and motivated by the same reason. we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding. Bengzon. J.. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. Separate Opinions PERFECTO. within the meaning and intent of the Public Service Act. both the personality and citizenship of Pedro O. creditors and heirs. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate an ice plant in San Juan. there is the simple expedient of revoking the certificate or enjoining them from inheriting it. No franchise granted to any individual. in view of the evidence of record.

de Joya for petitioner. Fragrante fulfill the citizenship requirement of the law. therefore. a liquid condition in process of solidification..The main question in this case is whether the estate of Pedro O. who voluntarily procured her abortion. That legal fiction is the estate. Fragrante fulfills the citizenship requirement.L. We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the Commission upon evidence that the party should be present. L-16439 July 20. is an alien. THE HON. A. it should be reversed. It is alleged that Gaw Suy. Salvador for respondents. a legal fiction has been devised to represent them. There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. J. If they are Filipino citizens. intended to designate the heirs of the deceased. could recover damages from physician who caused the same. be set aside and that the Commission be instructed to receive evidence of the above factual questions and render a new decision accordingly. a matter of fact.: This petition for certiorari brings up for review question whether the husband of a woman. boils down to the citizenship of the heirs of Fragrante. 1946. The estate is an abstract entity. its legal value depends on what it represents. in this case. COURT OF APPEALS and OSCAR LAZO. the action taken by the Public Service Commission should be affirmed.R. The question.P. What the law calls estate is. REYES. They inherit and replace the deceased at the very moment of his death. petitioner. 1961 ANTONIO GELUZ. No. We are of opinion and so vote that the decision of the Public Service Commission of May 21. respondents. Mariano H. therefore. It is a device by which the law gives a kind of personality and unity to undetermined tangible persons. the question can be restated by asking whether the heirs of Pedro O. If they are not. As there are procedural requisites for their identification and determination that need time for their compliance. vs. has only a representative value. the heirs. As such.B. the special administrator of the estate. . It should also determine the dummy question raised by the petitioner. To our mind. Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. The estate. J. Republic of the Philippines SUPREME COURT Manila EN BANC G.

Roadway Transit Co. in consideration of the sum of fifty pesos. . 242. he did not know of. "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera. The facts are set forth in the majority opinion as follows: Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. Desiring to conceal her pregnancy from her parent. in a special division of five. to the abortion. she again repaired to the defendant's clinic on Carriedo and P. p. who rendered a separate dissenting opinion. campaigning for his election to the provincial board. 49). against petitioner Antonio Geluz.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. being incapable of having rights and obligations. does not cover the case of an unborn foetus that is not endowed with personality. "Diccionario de Derecho Privado". of a two-month old foetus. On appeal.00 as damages.The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo. (2d) 639).00 attorney's fees and the costs of the suit. she had herself aborted by the defendant. Under the system of our Civil Code. she had herself aborted again by the defendant in October 1953. because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". where the three met the defendant and his wife. it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received. for the said article. 1955. On February 21. since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). Gomez streets in Manila. This we believe to be error. 1. Rep. in fixing a minimum award of P3. Upon application of the defendant Geluz we granted certiorari.000. P700.00 for the death of a person. The plaintiff was at this time in the province of Cagayan. 10 ALR. a physician. even if a cause of action did accrue on behalf of the unborn child. she again became pregnant.000. sustained the award by a majority vote of three justices as against two. Vol. In the present case. Nita was again aborted. the of Nita Villanueva. The Court of Appeals and the trial court predicated the award of damages in the sum of P3. Dietrich vs. the same was extinguished by its pre-natal death. ordering the latter to pay P3. 52 Am. she again became pregnant. In fact. accompanied by her sister Purificacion and the latter's daughter Lucida. nor gave his consent. 70 F. Court of Appeals. and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. The prevailing American jurisprudence is to the same effect. In 1950 she became pregnant by her present husband before they were legally married. Supp. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient. no such right of action could derivatively accrue to its parents or heirs. and acting on the advice of her aunt. Philippine currency. Less than two years later. It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. After her marriage with the plaintiff. and numerous cases collated in the editorial note. Convinced of the merits of the complaint upon the evidence adduced. the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz. It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code.. 555. Northampton.000. there is no dispute that the child was dead when separated from its mother's womb. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured.

evidently because the appellee's indifference to the previous abortions of his wife. if the circumstances should warrant them (Art. The decision appealed from is reversed.00 damages and P3. have no factual or legal basis.000. as well as to exemplary damages. . support or services from an unborn child.e. was clearly exaggerated.This is not to say that the parents are not entitled to collect any damages at all. Because the parents can not expect either help. It is unquestionable that the appellant's act in provoking the abortion of appellee's wife. ANTONIO QUIMIGUING and JACOBA CABILIN. Code Art. and the probabilities are that he was likewise aware of the first. The dissenting Justices of the Court of Appeals have aptly remarked that: It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary. but also his wife.00 attorney's fees. Without costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.plaintiffs-appellants. Suing through her parents. the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant. as distinguished from the injury or violation of the rights of the deceased. on account of distress and anguish attendant to its loss. 26795 July 31. that can not be too severely condemned. and the complaint ordered dismissed. Yet despite the suspicious repetition of the event. an "indemnity" claim that. and the majority opinion of the Court of Appeals did not contradict it. His only concern appears to have been directed at obtaining from the doctor a large money payment.000. without medical necessity to warrant it.R. Even after learning of the third abortion. But such damages must be those inflicted directly upon them. 2217). The lower court expressly found. i. they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus. also caused by the appellant herein.. 1970 CARMEN QUIMIGUING. No. 2230). under the circumstances on record. But in the case before us. under the circumstances of record. instead of abandoning them in favor of a civil action for damages of which not only he. both the trial court and the Court of Appeals have not found any basis for an award of moral damages. and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit. and secure the punishment of the responsible practitioner. would be the beneficiaries. and the consent of the woman or that of her husband does not excuse it. and the disappointment of their parental expectations (Civ. since he sued for P50. his right to life and physical integrity. clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. was a criminal and morally reprehensible act. But the immorality or illegality of the act does not justify an award of damage that. and with that idea in mind to press either the administrative or the criminal cases he had filed. he appeared to have taken no steps to investigate or pinpoint the causes thereof. that the appellee was aware of the second abortion. or both.

" just as a conceived child. plaintiff moved to amend the complaint to allege that as a result of the intercourse. even if such child should be born after the death of the testator Article 854. The unborn child. but the devises and legacies shall be valid insofar as they are not inofficious. sued Felix Icao in the court below. even if the said child is only "en ventre de sa mere. even if as yet unborn. 854. shall annul the institution of heir. In her complaint it was averred that the parties were neighbors in Dapitan City. The events in the court of origin can be summarized as follows: Appellant. sustaining defendant's objection. Civil Code). ART. and had close and confidential relations. Galon for plaintiffs-appellants. therefore. FELIX ICAO. or all of the compulsory heirs in the direct line. and after hearing arguments. in its Civil Case No. 742. and without her consent.L. presiding). ART. REYES. and another order denying amendment of the same pleading. since the original complaint averred no cause of action. despite efforts and drugs supplied by defendant. Wherefore. may receive donations as prescribed by Article 742 of the same Code. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. ruled that no amendment was allowable. and its being ignored by the parent in his testament may result in preterition of a forced heir that annuls the institution of the testamentary heir. dismissing a complaint for support and damages. A conceived child. Thereafter.00 per month. the trial judge sustained defendant's motion and dismissed the complaint. Torcuato L. . J. as explicitly provided in Article 40 of the Civil Code of the Philippines. succeeded in having carnal intercourse with plaintiff several times by force and intimidation.vs. Hence.. defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that the child had been born. but the court. has a right to support from its progenitors. plaintiff had later given birth to a baby girl. We find the appealed orders of the court below to be untenable. she claimed support at P120. the plaintiff appealed directly to this Court. some. Duly summoned. that as a result she became pregnant. whether living at the time of the execution of the will or born after the death of the testator. Carmen Quimiguing. although married. damages and attorney's fees. defendant-appellee. Godardo Jacinto for defendant-appellee. particularly of the defendant-appellee (whose paternity is deemed admitted for the purpose of the motion to dismiss). is given by law a provisional personality of its own for all purposes favorable to it. and plaintiff had to stop studying. 1590.B. although as yet unborn. assisted by her parents. that defendant Icao.: Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge Onofre Sison Abalos. J. The preterition or omission of one.

without prejudice to the right of 'representation. Op." violates Article 40 aforesaid. It is true that Article 40 prescribing that "the conceived child shall be considered born for all purposes that are favorable to it" adds further "provided it be born later with the conditions specified in the following article" (i. that the foetus be alive at the time it is completely delivered from the mother's womb). besides imposing a condition that nowhere appears in the text of Article 291. is not a condition precedent to the right of the conceived child. page 271) A second reason for reversing the orders appealed from is that for a married man to force a woman not his wife to yield to his lust (as averred in the original complaint in this case) constitutes a clear violation of the rights of his victim that entitles her to claim compensation for the damage caused. 21. clearly points this out: Los derechos atribuidos al nasciturus no son simples expectativas. the first part of Article 40 would become entirely useless and ineffective.If the omitted compulsory heirs should die before the testator.. independently of the right to Support of the child she was carrying. This proviso. sino que se trata de un hecho que tiene efectos declarativos. Costs against appellee Felix Icao. 27.. (1 Manresa. 30. rape or other lascivious acts: xxx xxx xxx (10) Acts and actions referred to in Articles 21. good customs or public policy shall compensate the latter for the damage. the orders under appeal are reversed and set aside. plaintiff herself had a cause of action for damages under the terms of the complaint. Manresa. for if it were. 28 . The rule of Article 21 is supported by Article 2219 of the same Code: ART 2219. in his Commentaries (5th Ed. el nacimiento del sujeto en las condiciones previstas por el art. and the order dismissing it for failure to state a cause of action was doubly in error. . Thus. Moral damages may be recovered in the following and analogous cases: (3) Seduction. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals. Let the case be remanded to the court of origin for further proceedings conformable to this decision. however. 26.e.) to the corresponding Article 29 of the Spanish Civil Code. WHEREFORE. abduction. ni aun en el sentido tecnico que la moderna doctrina da a esta figura juridica sino que constituyen un caso de los propiamente Ilamados 'derechos en estado de pendenci'. So ordered. the institution shall be effectual. Says Article 21 of the Civil Code of the Philippines: ART. cit.. It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is an obligation of parents and illegitimate children "does not contemplate support to children as yet unborn. no determina el nacimiento de aquellos derechos (que ya existian de antemano)...

: Fernando Felipe alias "Iying" appealed from the decision of the Court of First Instance of Bulacan convicting him of rape. Ruth Pancho. to provide maintenance and support for the child. when she heard some noise by the window. Afraid of the threat made upon her by the appellant. L-40432 July 19. Maria-Pancho. Notwithstanding the threat. noticed the enlargement of her abdomen. Mrs. and ordering him to pay the offended woman. manifested that he was submitting his case on the basis of the evidence presented by the People and that he would submit a memorandum for a judgment of acquittal. .000. Notwithstanding. Accordingly. Ruth Pancho was in a room in their house in Sta. Baliwag. we have accorded unswerving fidelity to the constitutional canon that an accused is presumed innocent until the contrary is proven and that. an uncle by affinity. No direct evidence whatsoever was presented to belie the testimony of the complainant. we cannot sanction a verdict of conviction on the basis solely or mainly of the failure or refusal of the accused to take the witness stand to deny the charges against him. After the prosecution had rested its case. Ruth was twenty-five (25) years old at the time of the trial and her educational attainment is only first year high school because she had to stop schooling due to low intelligence. FERNANDO FELIPE alias "Iying. the accused. Ruth did not report the incident to anyone until December 5. otherwise she would be killed.R. Artemio Marcelo and was found six months pregnant. 1971." Prosecution evidence shows that at about 8:00 in the evening of July 9. Barbara. plaintiff-appellee. and to pay the costs." defendant-appellant. No. poked a gun on her chest and warned her not to shout. sentencing him to suffer the penalty of reclusion perpetua. through counsel. Ruth was examined by Dr. 1982 THE PEOPLE OF THE PHILIPPINES. Ruth pushed and kicked the appellant who then boxed her on the thighs. Angelita Sta. Thus. Pancho informed complainant's mother about her condition and the following day the matter was reported to the police.Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. when her sister-in-law. Marivic Pancho. RELOVA. She did not pay much attention to the noise but later saw the appellant. the sum of P3. J. consequently. who covered her mouth.00 "for the social humiliation she has suffered. an accused should be convicted on the strength of the evidence presented by the prosecution and not on the weakness of the defense. Bulacan. 1971. poked his gun at her and removed her panty. the burden of proof as to the offense charge lies on the prosecution. vs. Appellant succeeded in having carnal knowledge of the complainant following which he poked his gun at her again and told her that if she would report the matter to anyone he would kill her.

Her testimony flowed out in simple terms. In her statement to the police in the preliminary investigation. The Defense is of the opinion that the force employed is of small proportion that the resistance put up by the victim cannot support the conviction of rape. The trial court. for the irregular arrival of her menstruation. but in the case of Ruth Pancho. there was no deviation from the main facts of her accusation and she repeated her story before this Court practically four square on the material points which prompted the Defense Counsel to state in his Memorandum. is guileless and simple in her demeanor. indeed. Fear can take on different proportions which in this case of a girl like the complainant. "All these contradicting statements reveal the fact that the complainant has a propensity to compromise the truth. "While we do not dispute the appellant's argument that mere initial token resistance is insufficient to sustain a conviction for rape. Innocent. which caused her being removed from first year high school by her parents. At times her answers could not match the professional bent of the questions of the learned cross-examiner. So the contradictions were more the product of mental weakness rather than deliberate falsehood or concoctions which. caring for the baby and laundering clothes.Such situation does not obtain. She admitted possessing a mental weakness. however. This proposition runs counter to the decision of the Court of Appeals in People vs. where the appellate court observed. arrived at the conclusion that the crime of rape was committed by the appellant Fernando Felipe upon the complainant Ruth Pancho on the night of July 9. sometimes. the length of time that had expired before the complainant reported the incident to the police authorities would be suspect. can be maintained through the interplay of the shame that possessed her hand in hand. it would seem that her fear and shame took hold and possessed her until such time that her shame could no longer be kept a secret.pregnancy. and made to attend to household chores. The complainant. She appeared very modest and unassuming. 1971. unschooled in protecting her virtues against the proddings of the male species. If she could lie on the following statements. This was in the early part of December. counsel for the defense. this Court has taken into consideration the demeanor of Ruth Pancho during the Trial. Her demeanor and behavior cannot be undermined. In arriving at this determination. she was. it ought to be admired and respected. She impressed the Court as shy. Besides his observations regarding her propensity to compromise with the truth would very well apply to a sophisticated girl wily and crafty in mentality. none in two months. three months. a low intelligence quotient. We find the conclusion of the trial court which sustained the People's evidence to be correct and plausible. 1962. but then her bulging stomach could no longer hide her secret . Yet she replied with candor. her manners belied any wile or craft.what could have prevented her from lying on the material points of her testimony?" Here then is an admission on the part of the Defense that the contradictions exhibited by the complainant were not on material points. 1971. On the contrary. as already observed. reticent and unsophisticated. analyzing the evidence of the prosecution and the memorandum of the defense. it is an equally true and accepted . reared as she was in the provincial ways. It is the dutiful daughter who would place the lives of her parents above her own. Ordinarily. in the case at bar. firm and sincere. Her fear was not only for herself but for her parents as well. this Court finds the complainant is. not capable of perpetrating. Lim Chua Pun decided on December 13.

. the presumption is against the accused. Defendant-appellant alleges that the trial court erred — I . It would take the sophistication of a Macchiavelli to invent such a distorted picture of a close relative (even an in-law). that "(It) is apparent that the accused is so situated that he could produce evidence of all the facts and circumstances to overcome the evidence of the prosecution. for the Honorable the Supreme Court intoned in People vs. Again. This is contrary to the natural course of human behavior. would tend to sustain the charge. The failure of the Defense to produce evidence in respect to any kind of hate existing either on her part. or of any man for that matter." FURTHERMORE. there are many more things that were insinuated and evidence ought to have been presented. and (d) it lacks corroboration on material and significant points and is contradicted by the other evidence on record. without rancor and without motivation. against the accused produces in the mind of the Court the respect to which her candid testimony in open session merits. Such allegation demands the presentation of evidence on the part of the accused. there is no evidence to show that the complainant has harbored any grudge of any sort whatsoever for her to concoct evidence or to tell a sordid story against the husband of a close relative. A true Filipina would not go around in public declaring the facts of her defloration for no reason if such were not the true facts. (c) it proceeds from a necessarily biased and polluted source. Francisquite. unnatural and borders on the absurd. It has been held that fear is capable of producing and having the effect of physical force required to overcome the resistance put up by a victim of rape. Ironically. he did not do. .. Other allegations of fact were made. or that of her kins. the sister of her own mother. FINALLY. On this point. (b) it is fraught within consistencies and is self-contradictory... the Defense has insinuated that there had been a relationship. 56 SCRA 765. if produced. beyond that of uncle-in-law and niece between the accused and the complainant. It is precisely the contention of the appellee that it was this fear..doctrine that force in rape is not strictly limited to physical force alone. instead of rebutting. The failure of the defense to put up any denial as to these allegations of fact and as to the rape itself is an indication that the incident actually occurred. the natural conclusion is that such proof. instilled in the Complainant by the appellant's threat to kill her backed up by revolver he was then wielding . in giving weight to the testimony of Ruth Pancho and making it the basis of its judgment of conviction despite the fact that (a) said testimony is highly improbable. but fails without justifiable cause to offer such proof." This is an instance where force in rape includes intimidation and is applicable to the present case.. the accused would rely on mere presumptions for his defense. such as the possession of the gun that ought to have been denied by the accused if it were not true at all. This. .

1910. As aptly contended by the Solicitor General in his brief.S. Lasada. The trial court even conducted an ocular inspection of the place in the presence of the fiscal. that the normal period of gestation is 280 days and that the Civil Code considers 300 days as the length of uterine development of a child. No. that in certain instances the Civil Code considers 300 days as the length of the uterine development of a child.. unless it has plainly overlooked certain facts of substance and value. but by providing that a . December 28. the defense contends that the fact that a child was born of the complainant on March 13. it has been the consistent ruling of this Court that appellate courts will generally not disturb the findings of the trial court..II . considering that it is in a better position to decide the question. and found that "the window that complaining witness was talking about is about 2 x 1-1/2 meters in width and 1-1/2 meter in height. demonstrating how she was lying down that evening. it was not raining. Such requirement has been complied with in the case at bar.." Anent the contention that the trial court erred in holding that the prosecution has proven the guilt of the appellant beyond reasonable doubt. "a child born 8 months and seven days after conception is considered normal.. that. G. in motu propio postponing the testimony of Ruth Pancho. the undenied.. the window sill has a height of about 4 to 5 m. " (U. having heard the witnesses themselves and observed their department and manner of testifying during the trial. No. but moral certainty is required as to every proposition of proof requisite to constitute the offense. 90. R. 1972 shows that the latter could not have been raped on July 9.. in not acquitting appellant for lack of proof of his guilt beyond reasonable doubt. 18 Phil. . Such theory does not. from the ground. L-21325. The claim is without merit. the defense counsel and the accused. 42 SCRA 59).. Further. G. might affect the result of the case. she heard the creeping sound on the window near her feet.R. however. suffice it to say that "absolute certainty of guilt is not demanded by the law as basis for conviction of any criminal charge. rebutted and uncontradicted testimony of Ruth Pancho as corroborated by the medicolegal findings of Dr. the electric bulb above her head was working at the time but it was not lighted at the time of the incident. at a distance of her head to the window is 3-1/2 feet and the distance of her head from the door leading to the sala is around 4 feet. thus providing the prosecution ample opportunity to coach its principal witness. As aptly observed by the trial court. Artemio Marcelo clearly shows that appellant Fernando Felipe had sexual intercourse with the complainant by means of force and intimidation.. if considered. People vs. 5324. find support in the evidence on record. the private prosecutor. Dramayo. IV . vs. witness also demonstrated that the three panes of the window were closed with a small portion slightly opened. 1971 because there are only 247 days between these dates. III . in not holding that the evidence for the prosecution is legally insufficient to establish the commission of the crane of rape. October 29. Besides. and it was there during the incident. The thrust of the errors assigned was that the act complained of was consummated with the consent of the complainant or at least with some degree of acquiescence in her part.. and immediately in front of it is a guava tree which has a branch of about 1-1/2 meters away from the window sill. 1971. it was also dark outside and there was no moon. witness demonstrated that her head was at the middle of the room.

It is this modification of the lower court's finding which is now being contested by the petitioner. petitioner. All of them having been heard jointly. Republic of the Philippines SUPREME COURT Manila EN BANC G. vs. Agrava. The importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro." As aforestated.R. all of whom were killed in the massacre of civilians by Japanese troops in Manila in February 1945. Sr. WHEREFORE.. is a normal child. the decision appealed from is hereby AFFIRMED. deceased. SO ORDERED. whose decision. the essential elements of the crime of rape have been proven satisfactorily by the prosecution. the latter was declared to have survived his mother. Judge Rafael Amparo handed down a single decision which was appealed to the Court of Appeals.premature child is one which has an intra-uterine life of less than seven months (Art. The Court of Appeals concurred with the trial court except that.. his wife Angela Joaquin de Navarro. Angela Joaquin de Navarro. 2nd. Joaquin Navarro. Civil Code) the Code impliedly recognizes that a child which had an intra-uterine life of 8 months... Sr. Jr. TUASON. 3rd. and 4th. 41. L-5426 May 29. or vice versa. respondent. in turn was elevated to the Supreme Court for review. his wife. named Pilar. as in the case at bar. No. ANTONIO C. lies in the fact that it radically affects the rights of succession of Ramon Joaquin. Jr. Joaquin Navarro. with regard to Angela Joaquin de Navarro and Joaquin Navarro. Dr.. Jr. The Navarro girls. The trial court found the deaths of this persons to have accurred in this order: 1st. Leonardo Abola for respondent. Sr. Jr. the present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of . but also this Court has time and again observed that it is hard to believe that an unmarried woman like the victim would publicly disclose that she was raped by a relative by affinity and subject her private parts to examination unless she is motivated by a strong desire to bring to justice the culprit who had previously wronged her. with costs against defendantappellant. 1953 RAMON JOAQUIN. Not only is the testimony of the victim corroborated and unrebutted by a disinterested and expert witness. Peralta & Agrava for petitioner. Joaquin Navarro. and Pilar Navarro.. J. NAVARRO. Artemio Marcelo. and their children.: This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of Joaquin Navarro. modifying that the Court of First Instance. Concepcion and Natividad. The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro.

which is not disputed. respondent. was shot and died shortly after the living the German Club in the company of his father and the witness. the testimony of the sole witness Lopez is to the effect that Joaquin Navarro. and Natividad. Concepcion.. the evidence of the survivorship is uncertain and insufficient" and the statutory presumption must be applied. The facts.. Jr. Joaquin Navarro. Concepcion and Natividad Navarro y Joaquin. and that the burning edified entirely collapsed minutes after the shooting of the son. "Joaquin Navarro. during the appreciable interval from the instant his son turned his back to her. and the latter's wife. son of Joaquin Navarro.. As they came out. but unfortunately met Japanese Patrols. Minutes later. No evidence is available on the point. Jr. Now in this case before us. and upon them the Court of Appeals opined that.. already on fire. Theresa Academy in San Marcelino Street.. especially those who were trying to escape. trapping many people inside. Angela Conde. and Antonio C. sought refuge in the ground floor of the building known as the German Club. shells were exploding around. Navarro. Sr. but that there must be adequate proof that one was alive when the other had already died. until February 10. the German Club. Sr. 1945. They flied toward the St. until he died.the deceased spouses. "At the time of the masaccre. Joaquin Navarro. Sr. from a variety of causes. and the latter's wife. together with their three daughters. direct or circumstantial. when they were forced to leave the shelter be. and a friend and former neighbor. the stayed there about three days. presumably including Angela Joaquin. During their stay. and their son Joaquin Navarro. and son Joaquin Navarro. Pilar. but there is not a scintilla of evidence. Adela Conde. Sr. Joaquin Navarro. the building was packed with refugees. are outlined in the statement in the decision of the Court of Appeals as follows: "On February 6. Simultaneously. who fired at the refugees. the Japanese started shooting at the people inside the building. like her daughters.. Mrs. and the Club was set on fire. and his daughter-in-law. and Angela Joaquin. or fatally struck by splinters from the exploding shells. Jr. Sr. from which we may infer the condition of the mother. Sr. were between 23 and 25. Joaquin Navarro. The three daughters were hit and fell of the ground near the entrance. overcome by the fumes. She might have been shot by the Japanese. Joaquin Navarro. his son. at the corner of San Marcelino and San Luis Streets of this City. Jr. and Francisco Lopez managed to reach an air raid shelter nearby. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German Club. Francisco Lopez. They could not convince Angela Joaquin who refused to join them.. while the other sisters." The Court of Appeals' finding were all taken from the testimony of Francisco Lopez. the spouses Joaquin Navarro. The appellate Court's reasoning for its conclusion is thus stated: "It does not require argument to show that survivorship cannot be established by proof of the death of only one of the parties. about 30.cause the shelling tore it open. "as between the mother Angela Joaquin and the son Joaquin Navarro. was aged 70. killed by falling beams from the burning edifice. Angela Joaquin. by first marriage. The others lay flat on the ground in front of the Club premises to avoid the bullets. his wife Angela Joaquin was about 67 years old. to dash out to the Club. collapsed. We cannot say for certain. Jr.. who miraculously survived the holocaust. 1915. and his son decided to abandon the premises to seek a safer heaven. and Joaquin Navarro. was shot in the head by a Japanese soldier and immediately dropped. Sr. dashed out of the burning edifice. but she could have died almost immediately after. Pilar Navarro was two or three years older than her brother.. Jr. while the battle for the liberation of Manila was raging. killing Joaquin Navarro. All we can decide is that no one saw her alive after . Jr.

must be deemed to have survived his mother. other from gages. "the situation which it present is one in which the facts are not only unknown but unknowable. Angela Joaquin. then the son Joaquin Navarro. Rules of Court). There being no evidence to the contrary. reads: When two person perish in the same calamity. are intended as a substitute for lacks and so are not to be available when there are facts. the persons who alleges the prior death of either must prove the allegation. It is clear that the law disregards episodic details. should. or drowning. and there are no (2) particular circumstances from when it can be inferred. who was admittedly above 60 years of age (Rule 123." Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. as the Court of Appeals said. and it is not (1) shown who died first. according to the following rules: xxx xxx xxx Article 33 of the Civil Code of 1889 of the following tenor: Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one from the other. It is the contention of the petitioner that it did not. Jr. the three daughters Pilar. under article 33. Clearly. and days later (of which there is no doubt). and Natividad. Concepcion. During the same battle. Most provisions. aged 30. and that on the assumption that there is total lack of evidence. battle or conflagration. (ii). this circumstance alone cannot support a finding that she died latter than her son. then Angela Joaquin and Joaquin Navarro. has repealed article 33 of the civil code of 1889. now article 43 of the New Civil Code. section 69 (ii) of the Revised Rules of Court. such as wreck. Jr. it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. subsec. fire.. and that there is no proof when she died. be held to have died at the same time. By . the only guide is the occasion of the deaths. Rule 123. in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity. A second reason is that the law. the survivorship is presumed from the probabilities resulting from the strength and ages of the sexes. the father Joaquin Navarro. and treats the battle as an overall cause of death in applying the presumption of survivorship. "The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her deceased children perished in the same calamity. then the mother Angela Joaquin. and no transmission of rights from one to the other shall take place. could not overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. In deed. The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for arises. some may die from wounds. now section 69 (ii) of Rule 123 of the Rules of Court. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be presently set forth. in the absence of proof the presumption shall be that they died at the same time. Hence the son Joaquin Navarro. and we are thus compelled to fall back upon the statutory presumption. "We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family met their end is as follows: first. 129. Jr. which is identical for all of them. Sr.her son left her aside. that battle for the liberation of Manila. 69. sec. as their language plainly implies. With particular reference to section 69 (ii) of Rule 123.

sir. or inferential. there is no specific evidence as to the time of death . Joaquin Navarro.O. . Since the facts are unknown and unknowable. Yes. 96 Pac. Miller. You said you were also heat at that time as you leave the German Club with Joaquin Navarro. then the statue of the presumption. 22. . it is convenient and necessary to detail the testimony. and the latter's wife?. Occasions like that. As was said in Grand Lodge vs. the presumption does not step in. pointing out that "our rule is taken from the Fourth Division of sec.. I fell down. Yes. Yes." (IX Wigmore on Evidence. 28.A.vs. circumstantial. The inference of survivorship cannot rest upon mere surmise. which was described by the trial court as "disinterested and trustworthy" and by the Court of Appeals as "entitled to credence. . from which a rational conclusion can be made. the law may apply the law of fairness appropriate to the different legal situation that arises. The statue does not mean circumstances which would shown. When by circumstantial evidence alone." Lopez testified: Q. 8 Cal. Q. Q. and the rule of preponderance of evidence controls. When the German Club collapsed where were you? — A. speculation. you are confused. which the Court of Appeals cited the applied with the respect to the deaths of the Navarro girls. xxx xxx xxx Q. sir. Jr. 220 Pac. that is the shooting of Joaquin Navarro. Could there have been an interval of fifteen minutes between the two events. .W." It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence of the survivorship need not be direct. a party seeks to prove a survivorship contrary to the statutory presumption. And you said you fell down close to Joaquin Navarro. or which would tend to show.? A. Q. 683. you know. .hypothesis. We were out 15 meters away from the building but I could see what was going on. . Where there are facts. Jr. Did you fall? — A. the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. . it is assumed that no evidence can be produced. supra. 483.W.. . probably that one died before the other. sir." the Supreme Court of California said: When the statue speaks of "particular circumstances from which it can be inferred" that one died before the other it means that there are circumstances from which the fact of death by one before the other may be inferred as a relation conclusion from the facts proven. 1940 ed. "if the matter is left to probably. Jr. known or knowable. App. and the collapse of the German Club? — A.) In In re Wallace's Estate. Miller. . or conjecture. it may be indirect. I could not say exactly. Grand Lodge A." . Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better appreciation of this issue. 1936 of the California Code of Civil Procedure. Sr.

sir. and Mr. sir. about 40 minutes. Yes. and Joaquin Navarro. in the sense that I did not see her actually die. . were already wounded? — A. a few minutes after we have dashed out. which was burning. Concepcion and Natividad Navarro. sir. Why did you have to dash out of the German Club. Q. and Natividad. Yes. Could it have been 40 minutes? — A. Well. They were wounded? — A. Q. Were they lying on the ground or not? — A. You mean to say that before you jumped out of the German Club all the Navarro girls.Q. to my knowledge. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? — A. Yes. Q. And none of them was not except the girls. because those Japanese soldiers were shooting the people inside especially those trying to escape. Joaquin Navarro. Could there (have) been an interval of an hour instead of fifteen minutes? — A. xxx xxx xxx Q. is that what you mean? A — . There were many people shot because they were trying to escape. You also know that Angela Joaquin is already dead? — A. From your testimony it would appear that while you can give positive evidence to the fact that Pilar. xxx xxx xxx Q. Because the Japanese had set fire to the Club and they were shooting people outside. but not probable. On the ground near the entrance. Mr. including Mrs. Jr. but when the building collapsed over her I saw and I am positive and I did not see her come out of that building so I presumed she died there. the German Club. because most of the people who were shot by the Japanese were those who were trying to escape. Q. Pilar. so we thought of running away rather than be roasted. yes. Can you tell the Honorable Court when did Angela Joaquin die? — A. Sr. collapsed over them. you can not give the same positive evidence to the fact that Angela Joaquin also died? — A. xxx xxx xxx Q. and the latter's wife? — A. Concepcion. Joaquin Navarro Jr. and as far as I can remember they were among those killed. you. sir. Possible. That is what I think. xxx xxx xxx Q. xxx xxx xxx Q. died. Sr. xxx xxx xxx Q. Yes. Joaquin Navarro.

In speaking of inference the rule can not mean beyond doubt. True. by which Mrs. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of concrete and its collapse." (In re Bohenko's Estate. while running. and keep the statutory presumption out of the case. citing Tortora vs. It strongly tends to prove that.S. It was not very likely that Mrs. in front of. a fair and reasonable inference can be arrived at. It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship between Angela Joaquin and Joaquin Navarro. made an attempt to escape. All these are speculative . They were trying to escape probably. he must have negotiated that distance in five seconds or less.Y. people in the building were also killed but these. Jr.) As the California courts have said. It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. the old lady was alive and unhurt. and the probabilities. for "inference is never certainty.Y. the German Club. 4 N. can you explain that? — A. 427. it is .Y. It is believed that in the light of the conditions painted by Lopez. besides the collapse of the building. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gun fire. 44. 622.E. as the situation looked to her.). when Joaquin Navarro. And it lends credence to Mr. How come that these girls were shot when they were inside the building. Joaquin Navarro. She could have perished within those five or fewer seconds. It will be said that all this is indulging in inferences that are not conclusive. were mostly refugees who had tried to slip away from it and were shot by Japanese troops. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped dead. and so died within that interval from the time he dashed out of the building. The Court of Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Navarro could have been killed.xxx xxx xxx Q. While the possibility that the mother died before the son can not be ruled out. namely: that Joaquin Navarro. long enough to warrant the inference that Mrs. 30. at the same time. died before his mother. Jr.. it will be recalled. Section 69(ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein provided be certain. it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. was killed. as stated. Hart vs. Besides. and 15 meters from. are against them. was sudden. Even so. Jr. This determination of Mrs. 80 N. Angela Joaquin was sill alive when her son expired The Court of Appeals mentioned several causes. Angela Joaquin to stay where she was may well give an idea. Joaquin Navarro. Hudson River Bridge Co. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family. so much so that the Navarro father and son tried hard to have her come along. she could not have kept away form protective walls. State of New York. of a condition of relative safety in the clubhouse at the moment her husband. the perils of death from staying were not so imminent. son. but if may be plain enough to justify a finding of fact. certainly not within the brief space of five seconds between her son's departure and his death. Angela Navarro. it was much longer than five seconds. As to fumes. Still in the prime of life. with his father and wife started to flee from the clubhouse. the building had been set on fire trap the refugees inside.. 2nd. more likely than not. Sr. but the probabilities that she did seem very remote. and that it was the collapse that killed Mrs. and there was no necessity for the Japanese to was their ammunition except upon those who tried to leave the premises. these do not cause instantaneous death. according to Lopez. and daughter-in-law left her. in the light of the known facts. 199 N. 269 N. Jr. Now.

which civil cases are decided. 4 T." The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of law. As was said in 1 Moran Commentaries on the Rules of ?Court. well considered. drawing an inference that the main fact in issue existed from collateral facts not directly proving. We are constrained to reverse the decision under review. The vital question in such cases is the cogency of the proof afforded by the secondary facts. or conjectures without any sure foundation in the evidence. An incredible witness does not cease to be such because he is not impeached or contradicted. 857. Sec. "Undisputed evidence is one thing. its existence. the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. But when the evidence is purely documentary. as above seen. . undisputed. and this being the case. where in an action on the game laws it was suggested that the gun with which the defendant fired was not charged with shot. In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises. citing Wilkinson vs. "according to probabilities. involves findings of fact which can not be disturbed. and contradicted evidence is another. is the existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts. weighed by common experience. engender the inference as a very strong probability. cited by Lord Chief Justice Kenyon.) "Juries must often reason. Payne. By substantial evidence is meant real evidence or at least evidence about which reasonable men may disagree. 468." (In re Wallace's Estate. or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom. R. surmises. Gauged by the doctrine of preponderance of evidence by. Joaquin Navarro's death preceded that of her son. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. or where a case is submitted upon an agreement of facts. Findings grounded entirely on speculations. according to experience. 3rd Ed. the authenticity of which is not questioned and the only issue is the construction to be placed thereon. the opposite theory — that the mother outlived her son — is deduced from established facts which. The particular circumstances from which the parties and the Court of Appeals drew conclusions are. which the Supreme Court has jurisdiction to look into. This result precludes the necessity of passing upon the question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. In fact. "bordering on the ridiculous. in our judgment. Without costs.) The same author tells us of a case where "a jury was justified in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing. this inference ought to prevail. 856." (1 Moore on Facts. speculations. the question is one of law which may be reviewed by the Supreme Court." says one author." That conclusion was not airtight. but strongly tending to prove. not of fact. How likely.supra. but that the bird might have died in consequence of the fright. The point is not. 596. and which has been discussed. and hold that the distribution of the decedents' estates should be made in accordance with the decision of the trial court.) It is said that part of the decision of the Court of Appeals which the appellant impugns.enough that "the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. 63. but rational. the correctness or incorrectness of those conclusions raises a question of law. It can not be defeated as in an instance. or conjectures come within the exception to the general rule.

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