CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA CABILIN, plaintiffsappellants, vs.

FELIX ICAO, defendant-appellee. G.R. No. 26795 July 31, 1970

Facts: This is an appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), dismissing a complaint for support and damages, and another order denying amendment of the same pleading. Icao, a married man, succeeded in having sex with Quimiguing, a student, several times by force and intimidation and without her consent. As a result, she became pregnant, despite efforts and drugs supplied by Icao, and had to stop studying. Quimiguing claims support at P120.00 monthly, damages and attorneys fees. Icao moved to dismiss the complaint for lack of cause of action since complainant did not allege that the child had indeed been born; trial judge sustained defendants motion. Plaintiff amended the complaint but trial court sustained the dismissal and ruled that no amendment to complaint is allowable. Hence, this appeal. Issue: Whether or not the case is covered by Article 40 of the New Civil Code which will entitle the child to claim support through the mother. Held: Yes. Plaintiff, through an amended complaint, avers that as a result of the intercourse, she had later given birth to a baby girl. The Supreme Court says that since, as provided in Article 40 of the New Civil Code (the conceived child shall be considered born for all purposes favorable to it, provided, it be born later with the conditions specified in following article), petitioner Quimiguings child, since time of conception, and as having fulfilled the requirement of having been born later, has a right to support from its progenitors, particularly of the defendant-appellee. Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause of action for damages under the terms of the complaint; and the order dismissing it for failure to state a cause of action was doubly in error. WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to the court of origin for further proceedings conformable to this decision. Costs against appellee Felix Icao. So ordered.

Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. L-45978 April 24, 1939 In re Will of FRANCISCO ELEAZAR, deceased. MIGUELA ELEAZAR, petitioner-appellee, vs. EUSEBIO ELEAZAR, oppositor-appellant. Azada and Veluz for appellant. D. C. Mayor for appellee. MORAN, J.: The deceased, Francisco Eleazar, omitted in his last will and testament his legitimate father, the appellant Eusebio Eleazar, expressly disinherited his lawful wife, Eulalia Nagar, and instituted the appellee herein, Miguela Eleazar, as his universal heir. The lower court admitted the will to probate and adjudged appellant and appellee each entitled to one-half of the estate. Appellant maintains in his appeal that the institution of the appellee as universal heir should be annulled and that he be declared entitled to all the estate of the deceased. The will, in so far as it deprives the appellant, as legitimate father of the deceased, of his legal portion, is null and void, but is valid with respect to the other half which the testator could freely dispose of and which should be considered as a legacy. (Escuin vs. Escuin, 11 Phil. 332; Arts. 814, 817, and 809, Civil Code.) Judgment is affirmed, with costs against appellant. Avancea, C.J., Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur. .

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