G.R. No. 123450.

August 31, 2005

GERARDO B. CONCEPCION, Petitioners,

vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.

DECISION

CORONA, J.:

The child, by reason of his mental and physical immaturity, needs special safeguard and care, including appropriate
legal protection before as well as after birth.1 In case of assault on his rights by those who take advantage of his
innocence and vulnerability, the law will rise in his defense with the single-minded purpose of upholding only his
best interests.

This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa Almonte, and a child
named Jose Gerardo. Gerardo and Ma. Theresa were married on December 29, 1989.2 After their marriage, they
lived with Ma. Theresa’s parents in Fairview, Quezon City.3 Almost a year later, on December 8, 1990, Ma. Theresa
gave birth to Jose Gerardo.4

Gerardo and Ma. Theresa’s relationship turned out to be short-lived, however. On December 19, 1991, Gerardo filed
a petition to have his marriage to Ma. Theresa annulled on the ground of bigamy. 5 He alleged that nine years before
he married Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which marriage was never
annulled.6 Gerardo also found out that Mario was still alive and was residing in Loyola Heights, Quezon City. 7

Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however, averred that the marriage
was a sham and that she never lived with Mario at all.8

The trial court ruled that Ma. Theresa’s marriage to Mario was valid and subsisting when she married Gerardo and
annulled her marriage to the latter for being bigamous. It declared Jose Gerardo to be an illegitimate child as a
result. The custody of the child was awarded to Ma. Theresa while Gerardo was granted visitation rights. 9

Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held him responsible for
the ‘bastardization’ of Gerardo. She moved for the reconsideration of the above decision "INSOFAR ONLY as that
portion of the … decision which grant(ed) to the petitioner so-called ‘visitation rights’… between the hours of 8 in the
morning to 12:00 p.m. of any Sunday."10 She argued that there was nothing in the law granting "visitation rights in
favor of the putative father of an illegitimate child."11 She further maintained that Jose Gerardo’s surname should be
changed from Concepcion to Almonte, her maiden name, following the rule that an illegitimate child shall use the
mother’s surname.

Gerardo opposed the motion. He insisted on his visitation rights and the retention of ‘Concepcion’ as Jose Gerardo’s
surname.

Applying the "best interest of the child" principle, the trial court denied Ma. Theresa’s motion and made the following
observations:

It is a pity that the parties herein seem to be using their son to get at or to hurt the other, something they should
never do if they want to assure the normal development and well-being of the boy.

The Court allowed visitorial rights to the father knowing that the minor needs a father, especially as he is a boy, who
must have a father figure to recognize – something that the mother alone cannot give. Moreover, the Court believes
that the emotional and psychological well-being of the boy would be better served if he were allowed to maintain
relationships with his father.

There being no law which compels the Court to act one way or the other on this matter, the Court invokes the
provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount
consideration."

WHEREFORE, the respondent’s Motion for Reconsideration has to be, as it is hereby DENIED. 12

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial court granting
visitation rights to Gerardo. She likewise opposed the continued use of Gerardo’s surname (Concepcion) despite the
fact that Jose Gerardo had already been declared illegitimate and should therefore use her surname (Almonte). The
appellate court denied the petition and affirmed in toto the decision of the trial court.13

On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative father visitation rights
over his illegitimate child, the appellate court affirmed the "best interest of the child" policy invoked by the court a
quo. It ruled that "[a]t bottom, it (was) the child’s welfare and not the convenience of the parents which (was) the
primary consideration in granting visitation rights a few hours once a week."14

The appellate court likewise held that an illegitimate child cannot use the mother’s surname motu proprio. The child,
represented by the mother, should file a separate proceeding for a change of name under Rule 103 of the Rules of
Court to effect the correction in the civil registry.15

Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate court. She also filed
a motion to set the case for oral arguments so that she could better ventilate the issues involved in the controversy.

After hearing the oral arguments of the respective counsels of the parties, the appellate court resolved the motion
for reconsideration. It reversed its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by
Gerardo but by Mario during her first marriage:

It is, therefore, undeniable – established by the evidence in this case – that the appellant [Ma. Theresa] was married
to Mario Gopiao, and that she had never entered into a lawful marriage with the appellee [Gerardo] since the so-
called "marriage" with the latter was void ab initio. It was [Gerardo] himself who had established these facts. In other
words, [Ma. Theresa] was legitimately married to Mario Gopiao when the child Jose Gerardo was born on December
8, 1990. Therefore, the child Jose Gerardo – under the law – is the legitimate child of the legal and subsisting
marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and
non-existent ‘marriage’ between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the legitimate
and existing marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is
right in firmly saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis (even supposing the
child to be his illegitimate child [Art. 146, The Family Code]); it would tend to destroy the existing marriage between
[Ma. Theresa] and Gopiao, would prevent any possible rapproachment between the married couple, and would
mean a judicial seal upon an illegitimate relationship. 16

The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose Gerardo was their
son. It gave little weight to Jose Gerardo’s birth certificate showing that he was born a little less than a year after
Gerardo and Ma. Theresa were married:

We are not unaware of the movant’s argument that various evidence exist that appellee and the appellant have
judicially admitted that the minor is their natural child. But, in the same vein, We cannot overlook the fact that Article
167 of the Family Code mandates:

"The child shall be considered legitimate although the mother may have declared against its legitimacy or may have
been sentenced as an adulteress." (underscoring ours)

Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her legitimate status on the
bare declaration of the mother and/or even much less, the supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate children for one’s legitimacy or illegitimacy cannot ever be
compromised. Not even the birth certificate of the minor can change his status for the information contained therein
are merely supplied by the mother and/or the supposed father. It should be what the law says and not what a
parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same was
denied.18 Hence, this appeal.

The status and filiation of a child cannot be compromised.19 Article 164 of the Family Code is clear. A child who is
conceived or born during the marriage of his parents is legitimate. 20

As a guaranty in favor of the child21 and to protect his status of legitimacy, Article 167 of the Family Code provides:

Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or
may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy.22 We explained the rationale of
this rule in the recent case of Cabatania v. Court of Appeals23 :

The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad
principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the
innocent offspring from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot. He has no standing in law to dispute the status
of Jose Gerardo. Only Ma. Theresa’s husband Mario or, in a proper case, 25 his heirs, who can contest the legitimacy
of the child Jose Gerardo born to his wife.26 Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs.27 Since the marriage of Gerardo and Ma. Theresa was void from the very
beginning, he never became her husband and thus never acquired any right to impugn the legitimacy of her child.

The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of
conception.28 To overthrow this presumption on the basis of Article 166 (1)(b) of the Family Code, it must be shown
beyond reasonable doubt that there was no access that could have enabled the husband to father the child. 29 Sexual
intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by
evidence to the contrary.30

The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus
between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the
child.31

To rebut the presumption, the separation between the spouses must be such as to make marital intimacy
impossible.32 This may take place, for instance, when they reside in different countries or provinces and they were
never together during the period of conception.33 Or, the husband was in prison during the period of conception,
unless it appears that sexual union took place through the violation of prison regulations. 34

Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was
living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers
apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to
disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa
and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the
marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by
him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose
Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

Gerardo relies on Ma. Theresa’s statement in her answer35 to the petition for annulment of marriage36 that she never
lived with Mario. He claims this was an admission that there was never any sexual relation between her and Mario,
an admission that was binding on her.

Gerardo’s argument is without merit.

First, the import of Ma. Theresa’s statement is that Jose Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declaration ― an avowal by the mother that her child is illegitimate ― is the very
declaration that is proscribed by Article 167 of the Family Code.

The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect
the legitimacy of a child born or conceived within a valid marriage.

Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma.
Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she
said was that she never lived with Mario. She never claimed that nothing ever happened between them.

Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardo’s conception
and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to
reinforce such possibility. Thus, the impossibility of physical access was never established beyond reasonable
doubt.

Third, to give credence to Ma. Theresa’s statement is to allow her to arrogate unto herself a right exclusively lodged
in the husband, or in a proper case, his heirs.37 A mother has no right to disavow a child because maternity is never
uncertain.38 Hence, Ma. Theresa is not permitted by law to question Jose Gerardo’s legitimacy.

Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with
her husband and that her offspring is illegitimate.39 The proscription is in consonance with the presumption in favor of
family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children. 40

Gerardo’s insistence that the filiation of Jose Gerardo was never an issue both in the trial court and in the appellate
court does not hold water. The fact that both Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was
born to them was immaterial. That was, in effect, an agreement that the child was illegitimate. If the Court were to
validate that stipulation, then it would be tantamount to allowing the mother to make a declaration against the
legitimacy of her child and consenting to the denial of filiation of the child by persons other than her husband. These
are the very acts from which the law seeks to shield the child.

Public policy demands that there be no compromise on the status and filiation of a child.41 Otherwise, the child will be
at the mercy of those who may be so minded to exploit his defenselessness.

The reliance of Gerardo on Jose Gerardo’s birth certificate is misplaced. It has no evidentiary value in this case
because it was not offered in evidence before the trial court. The rule is that the court shall not consider any
evidence which has not been formally offered.42

Moreover, the law itself establishes the status of a child from the moment of his birth. 43 Although a record of birth or
birth certificate may be used as primary evidence of the filiation of a child, 44 as the status of a child is determined by
the law itself, proof of filiation is necessary only when the legitimacy of the child is being questioned, or when the
status of a child born after 300 days following the termination of marriage is sought to be established.45

Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be contested collaterally
and, even then, only by the husband or, in extraordinary cases, his heirs. Hence, the presentation of proof of
legitimacy in this case was improper and uncalled for.

In addition, a record of birth is merely prima facie evidence of the facts contained therein.46 As prima facieevidence,
the statements in the record of birth may be rebutted by more preponderant evidence. It is not conclusive evidence
with respect to the truthfulness of the statements made therein by the interested parties.47 Between the certificate of
birth which is prima facie evidence of Jose Gerardo’s illegitimacy and the quasi-conclusive presumption of law
(rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it bear
more weight, it is also more conducive to the best interests of the child and in consonance with the purpose of the
law.

It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardo’s illegitimacy while
claiming that they both had the child’s interests at heart. The law, reason and common sense dictate that a
legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and
superior status. He is entitled to bear the surnames of both his father and mother, full support and full
inheritance.48 On the other hand, an illegitimate child is bound to use the surname and be under the parental
authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart.49 Moreover (without unwittingly exacerbating the discrimination against him), in the eyes
of society, a ‘bastard’ is usually regarded as bearing a stigma or mark of dishonor. Needless to state, the legitimacy
presumptively vested by law upon Jose Gerardo favors his interest.

It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very persons who were
passionately declaring their concern for him. The paradox was that he was made to suffer supposedly for his own
sake. This madness should end.

This case has been pending for a very long time already. What is specially tragic is that an innocent child is
involved. Jose Gerardo was barely a year old when these proceedings began. He is now almost fifteen and all this
time he has been a victim of incessant bickering. The law now comes to his aid to write finis to the controversy
which has unfairly hounded him since his infancy.

Having only his best interests in mind, we uphold the presumption of his legitimacy.

As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario and mother Ma.
Theresa, in conformity with the provisions of the Civil Code on surnames.50 A person’s surname or family name
identifies the family to which he belongs and is passed on from parent to child. 51 Hence, Gerardo cannot impose his
surname on Jose Gerardo who is, in the eyes of the law, not related to him in any way.

The matter of changing Jose Gerardo’s name and effecting the corrections of the entries in the civil register
regarding his paternity and filiation should be threshed out in a separate proceeding.

In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code grants visitation
rights to a parent who is deprived of custody of his children. Such visitation rights flow from the natural right of both
parent and child to each other’s company. There being no such parent-child relationship between them, Gerardo
has no legally demandable right to visit Jose Gerardo.

Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the Child and Youth
Welfare Code, is clear and unequivocal:

Article 8. Child’s Welfare Paramount. – In all questions regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is
similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The State as parens patriae affords special protection to children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide protection to those of tender years. 52 Through its laws, the
State safeguards them from every one, even their own parents, to the end that their eventual development as
responsible citizens and members of society shall not be impeded, distracted or impaired by family acrimony. This is
especially significant where, as in this case, the issue concerns their filiation as it strikes at their very identity and
lineage.

WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996 resolutions of the
Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.
 SECOND DIVISION

[G.R. No. 138961. March 7, 2002.]

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, Petitioner, v. JUANITA
TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA CHRISTINA
LIYAO, Respondents.

DECISION

DE LEON, JR., J.:

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the Court
of Appeals in CA-G.R. C.V. No. 45394 1 which reversed the decision of the Regional Trial Court (RTC)
of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate (spurious) son of
the deceased William Liyao and ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr. as a compulsory heir
of the deceased William Liyao and entitled to all successional rights as such and to pay the costs of
the suit.
ch an rob1 es virt u a1 1 aw 1 ib rary

On November 29, 1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil
Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as
"the illegitimate (spurious) child of the late William Liyao" against herein respondents, Juanita
Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao. 2 The complaint was
later amended to include the allegation that petitioner "was in continuous possession and enjoyment
of the status of the child of said William Liyao," petitioner having been "recognized and acknowledged
as such child by the decedent during his lifetime." 3

The facts as alleged by petitioner are as follows: ch an rob 1 es virt u al 1 aw lib rary

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than ten
(10) years at the time of the institution of the said civil case. Corazon cohabited with the late William
Liyao from 1965 up to the time of William’s untimely demise on December 2, 1975. They lived
together in the company of Corazon’s two (2) children from her subsisting marriage, namely: Enrique
and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City and Manila.
This was with the knowledge of William Liyao’s legitimate children, Tita Rose L. Tan and Linda
Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and
Christina were both employed at the Far East Realty Investment, Inc. of which Corazon and William
were then vice president and president, respectively. ch an rob1 es virt u a1 1 aw 1 ib rary

Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of her
husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his signature
and, had never been in touch with him despite the necessity to meet him. Upon the advice of William
Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was registered under the
name of Far East Realty Investment, Inc.

On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial Hospital.
During her three (3) day stay at the hospital, William Liyao visited and stayed with her and the new
born baby, William, Jr. (Billy). All the medical and hospital expenses, food and clothing were paid
under the account of William Liyao. William Liyao even asked his confidential secretary, Mrs. Virginia
Rodriguez, to secure a copy of Billy’s birth certificate. He likewise instructed Corazon to open a bank
account for Billy with the Consolidated Bank and Trust Company 4 and gave weekly amounts to be
deposited therein. 5 William Liyao would bring Billy to the office, introduce him as his good looking
son and had their pictures taken together. 6
During the lifetime of William Liyao, several pictures were taken showing, among others, William
Liyao and Corazon together with Billy’s godfather, Fr. Julian Ruiz, William Liyao’s legal staff and their
wives while on vacation in Baguio. 7 Corazon also presented pictures in court to prove that she
usually accompanied William Liyao while attending various social gatherings and other important
meetings. 8 During the occasion of William Liyao’s last birthday on November 22, 1975 held at the
Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the presence of Fr.
Ruiz, Maurita Pasion and other friends and said, "Hey, look I am still young, I can still make a good
looking son." 9 Since birth, Billy had been in continuous possession and enjoyment of the status of a
recognized and/or acknowledged child of William Liyao by the latter’s direct and overt acts. William
Liyao supported Billy and paid for his food, clothing and other material needs. However, after William
Liyao’s death, it was Corazon who provided sole support to Billy and took care of his tuition fees at La
Salle, Greenhills. William Liyao left his personal belongings, collections, clothing, old newspaper
clippings and laminations at the house in White Plains where he shared his last moments with
Corazon. ch an rob1 es virt u a1 1 aw 1 ib rary

Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and
William Liyao who were godparents to her children. She used to visit Corazon and William Liyao from
1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely, Bernadette and
Enrique (Ike), together with some housemaids lived with Corazon and William Liyao as one family.
On some occasions like birthdays or some other celebrations, Maurita would sleep in the couple’s
residence and cook for the family. During these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy,
Maurita often visited her three (3) to four (4) times a week in Greenhills and later on in White Plains
where she would often see William Liyao. Being a close friend of Corazon, she was at the Cardinal
Santos Memorial Hospital during the birth of Billy. She continuously visited them at White Plains and
knew that William Liyao, while living with her friend Corazon, gave support by way of grocery
supplies, money for household expenses and matriculation fees for the two (2) older children,
Bernadette and Enrique. During William Liyao’s birthday on November 22, 1975 held at the Republic
Supermarket Office, he was carrying Billy and told everybody present, including his two (2)
daughters from his legal marriage, "Look, this is my son, very guapo and healthy." 10 He then talked
about his plan for the baptism of Billy before Christmas. He intended to make it "engrande" and
"make the bells of San Sebastian Church ring." 11 Unfortunately, this did not happen since William
Liyao passed away on December 2, 1975. Maurita attended Mr. Liyao’s funeral and helped Corazon
pack his clothes. She even recognized a short sleeved shirt of blue and gray 12 which Mr. Liyao wore
in a photograph 13 as well as another shirt of lime green 14 as belonging to the deceased. A note
was also presented with the following inscriptions: "To Cora, Love From William. 15 Maurita
remembered having invited the couple during her mother’s birthday where the couple had their
pictures taken while exhibiting affectionate poses with one another. Maurita knew that Corazon is still
married to Ramon Yulo since her marriage has not been annulled nor is Corazon legally separated
from her said husband. However, during the entire cohabitation of William Liyao with Corazon Garcia,
Maurita had not seen Ramon Yulo or any other man in the house when she usually visited Corazon.

Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is the
son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her customers. Gloria
met Mr. Liyao at Corazon’s house in Scout Delgado, Quezon City in the Christmas of 1965. Gloria had
numerous occasions to see Mr. Liyao from 1966 to 1974 and even more so when the couple
transferred to White Plains, Quezon City from 1974-1975. At the time Corazon was conceiving, Mr.
Liyao was worried that Corazon might have another miscarriage so he insisted that she just stay in
the house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and together
with Atty. Brillantes’ wife and sister-in-law, had mahjong sessions among themselves. Gloria knew
that Mr. Liyao provided Corazon with a rented house, paid the salary of the maids and food for Billy.
He also gave Corazon financial support. Gloria knew that Corazon is married but is separated from
Ramon Yulo although Gloria never had any occasion to see Mr. Yulo with Corazon in the house where
Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time that
the latter abandoned and separated from his family. Enrique was about six (6) years old when
William Liyao started to live with them up to the time of the latter’s death on December 2, 1975. Mr.
Liyao was very supportive and fond of Enrique’s half brother, Billy. He identified several pictures
showing Mr. Liyao carrying Billy at the house as well as in the office. Enrique’s testimony was
corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr. Liyao
carrying Billy could not have been superimposed and that the negatives were in the possession of her
mother, Corazon Garcia. ch an rob 1 es virt u a1 1 aw 1 ib rary

Respondents, on the other hand, painted a different picture of the story.

Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao, were
legally married. 16 Linda grew up and lived with her parents at San Lorenzo Village, Makati, Metro
Manila until she got married; that her parents were not separated legally or in fact and that there
was no reason why any of her parents would institute legal separation proceedings in court. Her
father lived at their house in San Lorenzo Village and came home regularly. Even during out of town
business trips or for conferences with the lawyers at the office, her father would change his clothes at
home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other
people’s homes. Linda described him as very conservative and a strict disciplinarian. He believed that
no amount of success would compensate for failure of a home. As a businessman, he was very
tough, strong, fought for what he believed in and did not give up easily. He suffered two strokes
before the fatal attack which led to his death on December 2, 1975. He suffered a stroke at the office
sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for
two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move,
walk, write or sign his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the
office. She handled the collection of rents while her sister referred legal matters to their lawyers.
William Liyao was bedridden and had personally changed. He was not active in business and had
dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to
October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt
depressed, however, and was easily bored. He did not put in long hours in the office unlike before
and tried to spend more time with his family.

Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not legally
separated from her husband and the records from the Local Civil Registrar do not indicate that the
couple obtained any annulment 17 of their marriage. Once in 1973, Linda chanced upon Ramon Yulo
picking up Corazon Garcia at the company garage. Immediately after the death of Linda’s father,
Corazon went to Linda’s office for the return of the former’s alleged investments with the Far East
Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda added that
Corazon, while still a vice-president of the company, was able to take out documents, clothes and
several laminated pictures of William Liyao from the office. There was one instance when she was
told by the guards, "Mrs. Yulo is leaving and taking out things again." 18 Linda then instructed the
guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose, decided to let Corazon Garcia
go. Linda did not recognize any article of clothing which belonged to her father after having been
shown three (3) large suit cases full of men’s clothes, underwear, sweaters, shorts and pajamas. ch an rob 1 es virt u a1 1 aw 1 ib rary

Tita Rose Liyao-Tan testified that her parents were legally married and had never been separated.
They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of her father’s
death on December 2, 1975. 19 Her father suffered two (2) minor cardio-vascular arrests (CVA) prior
to his death. During the first heart attack sometime between April and May 1974, his speech and
hands were affected and he had to stay home for two (2) to three (3) months under strict
medication, taking aldomet, serpacil and cifromet which were prescribed by Dr. Bonifacio Yap, for
high blood pressure and cholesterol level control. 20 Tita Rose testified that after the death of Mr.
Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos (P100,000.00)
representing her investment in the Far East Realty Investment Inc. Tita Rose also stated that her
family never received any formal demand that they recognize a certain William Liyao, Jr. as an
illegitimate son of her father, William Liyao. After assuming the position of President of the company,
Tita Rose did not come across any check signed by her late father representing payment to lessors as
rentals for the house occupied by Corazon Garcia. Tita Rose added that the laminated photographs
presented by Corazon Garcia are the personal collection of the deceased which were displayed at the
latter’s office.

The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of
William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo Village,
Makati to pick up his boss at 8:00 o’clock in the morning. At past 7:00 o’clock in the evening, either
Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime between April and May
1974, Mr. Liyao got sick. It was only after a month that he was able to report to the office.
Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr.
Liyao suffered from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr.
Liyao, he ran errands for the latter among which was buying medicine for him like capasid and
aldomet. On December 2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr. Pineda saw
his employer leaning on the table. He tried to massage Mr. Liyao’s breast and decided later to carry
and bring him to the hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter,
Linda Liyao-Ortiga were the first to arrive at the hospital.

Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the Republic
Supermarket. People in the office knew that she was married. Her husband, Ramon Yulo, would
sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if
to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale, represented himself as car
dealer.

Witness Pineda declared that he did not know anything about the claim of Corazon. He freely relayed
the information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and then in
1974 to Atty. Quisumbing when he went to the latter’s law office. Being the driver of Mr. Liyao for a
number of years, Pineda said that he remembered having driven the group of Mr. Liyao, Atty.
Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a vacation together with the
lawyers’ wives. During his employment, as driver of Mr. Liyao, he does not remember driving for
Corazon Garcia on a trip to Baguio or for activities like shopping.

On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as
follows:ch anrob 1 es virt u al 1 aw lib rary

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as
follows:ch anrob 1 es virt u al 1 aw lib rary

(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor William
Liyao, Jr.;

(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased William
Liyao;

(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and
Christian Liyao, to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory heir of
the deceased William Liyao, entitled to all successional rights as such; and

(d) Costs of suit. 21

In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence that
the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the time when
Corazon Garcia cohabited with the deceased. The trial court observed that herein petitioner had been
in continuous possession and enjoyment of the status of a child of the deceased by direct and overt
acts of the latter such as securing the birth certificate of petitioner through his confidential secretary,
Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his son; providing
sustenance and even introducing herein petitioner to his legitimate children.

The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors the
legitimacy rather than the illegitimacy of the child and "the presumption of legitimacy is thwarted
only on ethnic ground and by proof that marital intimacy between husband and wife was physically
impossible at the period cited in Article 257 in relation to Article 255 of the Civil Code." The appellate
court gave weight to the testimonies of some witnesses for the respondents that Corazon Garcia and
Ramon Yulo who were still legally married and have not secured legal separation, were seen in each
other’s company during the supposed time that Corazon cohabited with the deceased William Liyao.
The appellate court further noted that the birth certificate and the baptismal certificate of William
Liyao, Jr. which were presented by petitioner are not sufficient to establish proof ,of paternity in the
absence of any evidence that the deceased, William Liyao, had a hand in the preparation of said
certificates and considering that his signature does not appear thereon. The Court of Appeals stated
that neither do family pictures constitute competent proof of filiation. With regard to the passbook
which was presented as evidence for petitioner, the appellate court observed that there was nothing
in it to prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since
William Liyao’s signature and name do not appear thereon. ch an rob1 es virt u a1 1 aw 1 ib rary

His motion for reconsideration having been denied, petitioner filed the present petition.

It must be stated at the outset that both petitioner and respondents have raised a number of issues
which relate solely to the sufficiency of evidence presented by petitioner to establish his claim of
filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked the real
crux of this litigation: May petitioner impugn his own legitimacy to be able to claim from the estate of
his supposed father, William Liyao?

We deny the present petition.

Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be
legitimate. 22 The presumption of legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of natural justice and the supposed
virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the
odium of illegitimacy. 23

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be
overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code 24 provides: ch an rob1 es virt u al 1 aw lib rary

Article 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: ch an rob1 es virt u al 1 aw lib rary

1) By the impotence of the husband;

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

3) By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from
her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it was
physically impossible for her to have sexual relations with Ramon Yulo when petitioner was conceived
and born. To bolster his claim, petitioner presented a document entitled, "Contract of Separation," 25
executed and signed by Ramon Yulo indicating a waiver of rights to any and all claims on any
property that Corazon Garcia might acquire in the future. 26

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time
petitioner was conceived and born is of no moment. While physical impossibility for the husband to
have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child,
it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255
of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the
conditions set forth under Article 262 of the Civil Code. 27 Impugning the legitimacy of the child is a
strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he
is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces
and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral
and economic interest involved. 28 It is only in exceptional cases that his heirs are allowed to contest
such legitimacy. Outside of these cases, none — even his heirs — can impugn legitimacy; that would
amount to an insult to his memory. 29

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the
then minor, herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as
the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born within a
valid marriage is presumed legitimate even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. 30 We cannot allow petitioner to maintain
his present petition and subvert the clear mandate of the law that only the husband, or in exceptional
circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting
marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the
father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter
cannot choose to be the child of his mother’s alleged paramour. On the other hand, if the
presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who
successfully defeated the presumption. 31

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon
Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the latter?

We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are
allowed to contest the legitimacy of the child. There is nothing on the records to indicate that Ramon
Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by petitioner himself through his mother,
Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that the legitimacy of the
child can be impugned only in a direct action brought for that purpose, by the proper parties and
within the period limited by law.ch an rob 1 es virt u a1 1 aw 1 ib rary

Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented by
both parties on the petitioner’s claim of alleged filiation with the late William Liyao. In any event,
there is no clear, competent and positive evidence presented by the petitioner that his alleged father
had admitted or recognized his paternity.

WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in CA-G.R.
CV No. 45394 is hereby AFFIRMED. No costs.

SO ORDERED.
 [G.R. No. 4275. March 23, 1909. ]

PAULA CONDE, Plaintiff-Appellee, v. ROMAN ABAYA, Defendant-Appellant.

C. Oben, for Appellant.

L. Joaquin, for Appellee.

SYLLABUS

1. ESTATES: ACTION AGAINST EXECUTION OR ADMINISTRATIONS. — While an estate is in the

course of settlement in a special proceeding, no ordinary action can be maintained by a person
claiming to be an heir, against the executor or administrator, for the purpose of having his rights in
the estate determined. (Pimentel v. Palanca, 5 Phil. Rep., 436.)

2. DISTINCTION BETWEEN RIGHTS OF ACTION BY LEGITIMATE AND BY NATURAL CHILDREN TO

COMPEL RECOGNITION. — As a general rule, the right of action of a child to enforce recognition of its
legitimacy lasts during the lifetime of such child, but the right of a natural child to compel
acknowledgment of its status continues only during the life of the alleged parents. The right of action
for a declaration of legitimacy is transmitted to the heirs of the child only when the latter dies during
minority or while insane, or in case the action has already been instituted. Action by a natural child
can only be brought against the heirs of the parents in the event of the death of the parents during
the minority of the child, or upon the discovery of a document, after the death of the parents,
expressly acknowledging such child. This right of action which the law concedes to this natural child
is not transmitted to his ascendants or descendants. (Arts. 18 and 137, Civil Code.)

Per Torres, J., dissenting: ch an rob1 es virt u al 1 aw lib rary

3. NATURAL CHILDREN; SUCCESSION AND TRANSMISSION OF RIGHTS TO DEMAND RECOGNITION.

— Although article 137 of the Civil Code contains no disposition authorizing the transfer, in favor of
the natural mother in her capacity of heir of her natural child, of the right to judicially demand the
recognition of her child by the heirs of his late natural father; yet there is no express provision
therein that prohibits such transfer or that declares such right to be nontransferable.

4. ID.; ID. — The relation of paternity and filiation between natural parents and children is also of a
natural character, and therefore, reciprocal intestate succession between them is exclusively
governed by articles 944 and 945 of the Civil Code.

5. ID.; ID. — If the right of succession granted by the law to the natural children corresponds
reciprocally to the natural father or mother in the same cases, and if the estate includes all property,
rights and obligations of a person which do not expire at the latter’s death, it is certain that, among
the rights transferred to the natural mother by inheritance, at the time of the death of her natural
child, is the right held by such child during his lifetime to demand his recognition as such by his
natural father, should the latter still live, or by his heirs.

6. ID.; ID. — There is no legal provision that declares the said right to demand the recognition of a
natural child to be nontransferable to the latter’s heirs, and specially to his natural mother, nor is
there any rule declaring such right extinguished at the death of the natural child.

7. ID.; ID. — In the intestate succession of a natural child who dies during his minority, recognized
by the law in favor of his father or mother who have acknowledged him, no limitation has been
established excluding the said right from transferable rights, nor has it been expressly declared that
the above-mentioned right to demand the recognition of the natural child is extinguished at the
latter’s death, wherefore it is necessary to admit that the mother inherits from the natural child at his
death, and that she is entitled to institute the corresponding action.
 DECISION

ARELLANO, C.J. :

From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the
Court of First Instance of La Laguna for the settlement of the intestate estate and the distribution of
the property of Casiano Abaya it appears: ch an rob 1 es virt u al 1 aw lib rary

I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabina Labadia,
died on the 6th of April 1899; that Paula Conde, as the mother of the natural children Jose and
Teopista Conde, whom she states she had by Casiano Abaya, on the 6th of November, 1905, moved
the settlement of the said intestate succession; that an administrator having been appointed for the
said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo Abaya and
Sabina Labadia, the parents of the late Casiano Abaya, came forward and opposed said appointment
and claimed it for himself as being the nearest relative of the deceased; that this was granted by the
court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman Abaya moved
that, after due process of law, the court declare him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of Paula Conde, and to be therefore entitled to take
possession of all the property of said estate, and that it be adjudicated to him; and that on November
22, 1906, the court ordered the publication of notices for the declaration of heirs and distribution of
the property of the estate.

II. That on the 28th of November, 1906, Paula Conde, in reply to the foregoing motion of Roman
Abaya, filed a petition wherein she stated that she acknowledged the relationship alleged by Roman
Abaya, but that she considered that her right was superior to his and moved for a hearing of the
matter, and, in consequence of the evidence that she intended to present she prayed that she be
declared to have preferential rights to the property left by Casiano Abaya, and that the same be
adjudicated to her together with the corresponding products thereof.

III. That the trial was held, both parties presenting documentary and oral evidence, and the court
below entered the following judgment: jg c:ch an rob les.com.p h

"That the administrator of the estate of Casiana Abaya should recognize Teopista and Jose Conde as
being natural children of Casiano Abaya; that the petitioner Paula Conde should succeed to the
hereditary rights of her children with respect to the inheritance of their deceased natural father
Casiano Abaya; and therefore, it is hereby declared that she is the only heir to the property of the
said intestate estate, to the exclusion of the administrator, Roman Abaya." cralaw virt u a1 aw lib rary

IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented
the following statement of errors:ch an rob1 es virt u al 1 aw lib rary

1. The fact that the court below found that an ordinary action for the acknowledgment of natural
children under articles 135 and 137 of the Civil Code, might be brought in special probate
proceedings.

2. The finding that after the death of a person claimed to be an unacknowledged natural child, the
mother of such presumed natural child, as heir to the latter, may bring an action to enforce the
acknowledgment of her deceased child in accordance with articles 135 and 137 of the Civil Code.

3. The finding in the judgment that the alleged continuous possession of the deceased children of
Paula Conde of the status of natural children of the late Casiano Abaya, has been fully proven in
these proceedings; and
4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula
Conde, as improperly found by the court below, the court erred in not having declared that said
property should be reserved in favor of relatives of Casiano Abaya to the third degree, and in not
having previously demanded securities from Paula Conde to guarantee the transmission of the
property to those who might fall within the reservation.

As to the first error assigned, the question is set up as to whether in special proceedings for the
administration and distribution of an intestate estate, an action might be brought to enforce the
acknowledgment of the natural child of the person from whom the inheritance is derived, that is to
say, whether one might appear as heir on the ground that he is a recognized natural child of the
deceased, not having been so recognized by the deceased either voluntarily or compulsory by reason
of a preexisting judicial decision, but asking at the same time that, in the special proceeding itself, he
be recognized by the presumed legitimate heirs of the deceased who claim to be entitled to the
succession opened in the special proceeding.

According to section 782 of the Code of Civil Procedure —

"If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the
deceased person are, or as to the distributive share to which each person is entitled under the law,
the testimony as to such controversy shall be taken in writing by the judge, under oath and signed
by witness. Any party in interest whose distributive share is affected by the determination of such
controversy, may appeal from the judgment of the Court of First Instance determining such
controversy to the Supreme Court, within the time and in the manner provided in the last preceding
section."cralaw virt u a1 aw lib rary

This court has decided the present question in the manner shown in the case of Juana Pimental v.
Engracio Palanca (5 Phil. Rep. 436.)

The main question with regard to the second error assigned, is whether or not the mother of a
natural child now deceased, but who survived the person who, it is claimed, was his natural father,
also deceased, may bring an action for the acknowledgment of the natural filiation in favor of such
child in order to appear in his behalf to receive the inheritance from the person who is supposed to
be his natural father.

In order to decide in the affirmative the court below has assigned the following as the only
foundation: jg c:ch an rob les.com.p h

"In resolving a similar question Manresa says: ’An acknowledgment can only be demanded by the
natural child and his descendants whom it shall benefit, and should they be minors or otherwise
incapacitated, such person as legally represents them; the mother may ask it in behalf of her child so
long as he is under her authority.’ On this point no positive declaration has been made, undoubtedly
because it was not considered necessary. A private action is in question and the general rule must be
followed. Elsewhere the same author adds: ’It may so happen that the child dies before four years
have expired after attaining majority, or that the document supporting his petition for
acknowledgment is discovered after his death, such death perhaps occurring after his parents had
died, as is supposed by article 137, or during their lifetime. In any case such right of action shall
pertain to the descendants of the child whom the acknowledgment may interest.’ (See Commentaries
to arts. 135 and 137, Civil Code. Vol. I.) ’

The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks
legal and doctrinal foundation. The power to transmit the right of such action by the natural child to
his descendants can not be sustained under the law, and still less to his mother.

It is without any support in law because the rule laid down in the code is most positive, limiting in
form, when establishing the exception for the exercise of such right of action after the death of the
presumed parents, as is shown hereafter. It is not supported by any doctrine, because up to the
present time no argument has been presented, upon which even an approximate conclusion could be
based.

Although the Civil Code considerably improved the condition of recognized natural children, granting
them rights and actions that they did not possess under the former laws, they were not, however,
placed upon the same plane as legitimate ones. The difference that separates these two classes of
children is still great, as proven by so many articles dealing with the rights of the family and with
succession in relation to the members thereof. It may be laid down as a legal maxim, that whatever
the code does not grant to the legitimate children, or in connection with their rights, must still less be
understood as granted to recognized natural children or in connection with their rights. There is not a
single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the
acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family
of the father or the mother who recognizes him, and affords him a participation in the rights of the
family, relatively advantageous according to whether they are alone or whether they concur with
other individuals of the family of his purely natural father or mother.

Thus, in order to consider the spirit of the Civil Code nothing is more logical than to establish a
comparison between an action to claim the legitimacy, and one to enforce acknowledgment.

"Art. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime
and shall be transmitted to its heirs, should it die during minority or in a state of insanity. In such
cases the heirs shall be allowed a period of five years in which to institute the action.

"The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed
before then.

"Art. 137. The actions for the acknowledgment of natural children can be instituted only during the
life of the presumed parents, except in the following cases: jg c:ch anrob les.com.p h

"1. If the father or mother died during the minority of the child, in which case the latter may institute
the action before the expiration of the first four years of its majority.

"2. If, after the death of the father or mother, some instrument, before unknown, should be
discovered in which the child is expressly acknowledged.

"In this case the action must be instituted within the six months following the discovery of such
instrument." cralaw virt u a1 aw lib rary

On this supposition the first difference that results between one action and the other consists in that
the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always be
brought against the presumed parents or their heirs by the child itself, while the right of action for
the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it can
not be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only
during the life of the presumed parents.

With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of
the obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the
most radical difference in that the former continues during the life of the child who claims to be
legitimate, and he may demand it either directly and primarily from the said presumed parents, or
indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a
general rule, it only lasts during the life of the presumed parents. Hence the other difference, derived
as a consequence, that an action for legitimacy is always brought against the heirs of the presumed
parents in case of the death of the latter, while the action for acknowledgment is not brought against
the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed
above.

So much for the passive transmission of the obligation to admit the legitimate filiation, or to
acknowledge the natural filiation.

As to the transmission to the heirs of the child of the latter’s action to claim his legitimacy, or to
obtain the acknowledgment of his natural filiation, it is seen that the code grants it in the first case,
but not the second. It contains provisions for the transmission of the right of action which, for the
purpose of claiming his legitimacy inheres in the child, but it does not say a word with regard to the
transmission of the right to obtain the acknowledgment of the natural filiation.

Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of
action which devolves upon the child to claim his legitimacy under article 118, may be transmitted to
his heirs in certain cases designated in the said article; (2) That the right of action for the
acknowledgment of natural children to which article 137 refers, can never be transmitted, for the
reason that the code makes no mention of it in any case, not even as an exception.

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 of action to claim legitimacy from his predecessor is not
expressly, independently, or, as a general rule, conceded to the heirs of the legitimate child, but only
relatively and as an exception. Consequently, the pretension that the right of action on the part of
the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is
altogether unfounded. No legal provision exists to sustain such pretension, nor can an argument of
presumption be based on 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 on a better
footing than the heirs of the legitimate one, when, as a matter of fact, the position of a natural child
is no better than, nor even equal to, that of a legitimate child.

From the express and precise precepts of the code the following conclusions are derived: ch an rob 1 es virt u al 1 aw lib rary

The right of action that devolves upon the child to claim his legitimacy lasts during his whole life,
while the right to claim the acknowledgment of a natural child lasts only during the life of his
presumed parents.

Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole
life, he may exercise it either against the presumed parents, or their heirs; while the right of action
to secure the acknowledgment of a natural child, since it does not last during his whole life, but
depends on that of the presumed parents, as a general rule can only be exercised against the latter.

Usually the right of action for legitimacy devolving upon the child is of a personal character and
pertains exclusively to him, only the child may exercise it at any time during his lifetime. As an
exception, and in three cases only, it may be transmitted to the heirs of the child, to wit, if he died
during his minority, or while insane, or after action had been already instituted.

An action for the acknowledgment of a natural child may, as an exception, be exercised against the
heirs of the presumed parents in two cases: first, in the event of the death of the latter during the
minority of the child, and second, upon the discovery of some instrument of express acknowledgment
of the child, executed by the father or mother, the existence of which was unknown during the life of
the latter.

But as such action for the acknowledgment of a natural child can only be exercised by him. It can not
be transmitted to his descendants, or to his ascendants.

In support of the foregoing the following authorities may be cited: ch an rob1 es virt u al 1 aw lib rary
Sanchez Roman, in his Treatise on Civil Law, propounds the question as to whether said action
should be considered transmissive to the heirs or descendants of the natural child, whether he had or
had not exercised it up to the time of his death, and decides it as follows;

"There is an entire absence of legal provisions, and at most, it might be deemed admissible as a
solution, that the right of action to claim the acknowledgment of a natural child is transmitted by
analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of a
legitimate child, to claim his legitimacy, under article 118, but nothing more; because on this point
nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate
child, and even to compare them would not fail to be a strained and questionable matter, and one of
great difficulty for decision by the courts, for the simple reason that for the heirs of the legitimate
child, the said article 118 exists, while for those of the natural child, as we have said, there is no
provision in the code authorizing the same, although on the other hand there is none that prohibits
it." (Vol. V.)

Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court
of Spain," commenting upon article 137, say: jg c:ch an rob les.com.p h

"Article 118, taking into account the privileges due to the legitimacy of children, grants them the
right to claim said legitimacy during their lifetime, and even authorizes the transmission of said right
for the space of five years to the heirs thereof, if the child die during his minority or in a state of
insanity. But as article 137 is based on the consideration that in the case of a natural child, ties are
less strong and sacred in the eyes of the law, it does not fix such a long and indefinite period for the
exercise of the action; it limits it to the life of the parents, excepting in the two cases mentioned in
said article; and it does not allow, as does article 118, the action to pass on to the heirs, inasmuch
as, although it does not prohibit it, and for that reason it might be deemed on general principles of
law to consent to it, such a supposition is inadmissible for the reason that a comparison of both
articles shows that the silence of the law in the latter case is not, nor can it be, an omission, but a
deliberate intent to establish a wide difference between the advantages granted to a legitimate child
and to a natural one." cralaw virt u a1 aw lib rary

(Ibid., Vol. II, 171.)

Navarro Amandi (Cuestionario del Codigo Civil) raises the question: "Can the heirs of a natural child
claim the acknowledgment in those cases wherein the father or mother are under obligation to
acknowledge" ? And says: jg c:ch an rob les.com.p h

"Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of
investigation forms a part of the estate of the child, and along with his patrimony is transmitted to
his heirs. The affirmation is altogether too categorical to be admissible. If it were correct the same
thing would happen as when the legitimacy of a child is claimed, and as already seen, the right of
action to demand the legitimacy is not transmitted to the heirs in every case and as an absolute
right, but under certain limitations and circumstances. Now, were we to admit the doctrine of the
court of Rennes, the result would be that the claim for natural filiation would be more favored than
one for legitimate filiation. This would be absurd, because it can not be conceived that the legislator
should have granted a right of action to the heirs of the natural child, which is only granted under
great limitations and in very few cases to those of a legitimate one. Some persons insist that the
same rules that govern legitimate filiation apply by analogy to natural filiation, and that in this
conception the heirs of the natural child are entitled to claim it in the cases prescribed by article 118.
The majority, however, are inclined to consider the right to claim acknowledgment as a personal
right, and consequently, not transmissive to the heirs. Really there are not legal grounds to warrant
the transmission." (Vol. 2, 229.)

In a decision like the present one it is impossible to bring forward the argument of analogy for the
purpose of considering that the heirs of the natural child are entitled to the right of action which
article 118 concedes to the heirs of the legitimate child. The existence of a provision for the one case
and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio
alterius, and it can not be understood that the provision of law should be the same when the same
reason does not hold in the one case as in the other.

The theory of the law of transmission is also entirely inapplicable in this case. This theory, which in
the Roman Law expressed the general rule that an heir who did not accept an inheritance during his
lifetime was incapacitated from transmitting it to his own heirs, included at the same time the idea
that if the inheritance was not transmitted because the heir did not possess it, there were, however,
certain things which the heir held and could transmit. Such was the law and the right to accept the
inheritance, for the existing reason that all rights, both real and personal, shall pass to the heir; quia
haeres representat defunctum in omnibus et per omnia. According to article 659 of the Civil Code,
"the inheritance includes all the property, rights, and obligations of a person, which are not
extinguished by his death." If the mother is the heir of her natural child, and the latter, among other
rights during his lifetime was entitled to exercise an action for his acknowledgment against his father,
during the life of the latter, or after his death in some of the excepting cases of article 137, such
right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was
so understood by the court of Rennes when it considered the right in question, not as a personal and
exclusive right of the child which is extinguished by his death, but as any other right which might be
transmitted after his death. This right of supposed transmission is even less tenable than that sought
to be sustained by the argument of analogy.

The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of
the child who claims acknowledgment as a natural child. And it is evident that the right of action to
claim his legitimacy is not one of those rights which the legitimate child may transmit by inheritance
to his heirs; it forms no part of the component rights of his inheritance. If it were so, there would
have been no necessity to establish its transmissibility to heirs as an exception in the terms and
conditions of article 118 of the code. So that, in order that it may constitute a portion of the child’s
inheritance, it is necessary that the conditions and the terms contained in article 118 shall be
present, since without them, the right that the child held during his lifetime, being personal and
exclusive in principle, and therefore, as a general rule not susceptible of transmission, would and
should have been extinguished by his death. Therefore, where no express provision like that of
article 118 exists, the right of action for the acknowledgment of a natural child is, in principle and
without exception, extinguished by his death, and can not be transmitted as a portion of the
inheritance of the deceased child.

On the other hand, it said right of action formed a part of the child’s inheritance, it would be
necessary to establish the doctrine that the right to claim such an acknowledgment from the
presumed natural father and from his heirs is an absolute right of the heirs of the child, not limited
by certain circumstances as in the case of the heirs of a legitimate child; and if it is unreasonable to
compare a natural child with a legitimate one to place the heirs of a natural child and his inheritance
on a better footing than those of a legitimate child would not only be unreasonable, but, as stated in
one of the above citations, most absurd and illegal in the present state of the law and in accordance
with the general principles thereof.

For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts,
without any special ruling as to the costs of this instance.