Keywords: Transmissible Rights and Obligation; Difference of a natural child and legitimate child under the (OLD)Civil Code

PAULA CONDE vs ROMAN ABAYA G. R. No. 4275. March 23, 1909ARELLANO, C.J.:

FACTS:

The deceased Casiano Abaya and herein appellant Roman Abaya are siblings. Casiano died intestate and unmarried. Roman was then appointed by the court as the administrator of Casianos estate.

Paula Conde, herein respondent, is the mother of Jose and Teopista Conde, whom she alleges are the natural children of the late Casiano. She then moved the settlement of Casianos estate claiming to be the sole heir of Casiano, to the exclusion of Roman. She contended that the right of the two natural children whom she had with Casiano, and consequently, her rights as heir of such natural children, was superior to that of Romans.

The trial court rendered a decision in favor of Paula. It held that Paula should succeed to the hereditary rights of her children with respect to the inheritance of their deceased father Casiano. She was consequently declared as the only heir.

Hence this appeal by Roman.

ISSUE:Whether or not the claim of legitimacy of the natural children, Jose and Teopista, may be transmitted by inheritance to their mother and heir, Paula?

HELD: NO.

The power to transmit the right of such action by the natural child to his descendants cannot be sustained under the law, and still less to his mother.

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 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 cannot be transmitted to his descendants, or to his ascendants.

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 childs 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 cannot be transmitted as a portion of the inheritance of the deceased child.

Petition affirmed. Paula Conde CANNOT inherit the rights of her children.Pamplona v. MoretoNo. L-33187March 31, 1980Facts:Flaviano Moreto and Monica Maniega, a husband and wife, who acquired adjacent lots nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate covered by certificates of title issued in the name of Flaviano Moreto married to Monica Maniega. They had 6 children who left heirs after their death as well as became co-heirs with respect to the property owned by Flaviano and Monica. More than 6 yrs after Monica Maniegas death, Flaviano sold lot 1495 for P900 to spouses Pamplona without the consent of his heirs and without any liquidation of the conjugal partnership. The spouses Pamplona constructed their house on the eastern part of lot 1496 as it was pointed out by Flaviano which was a mistake on the part of both seller and buyer. Flaviano died intestate on August 12, 1956 and in 1961, the plaintiffs demanded on the defendants to vacate the premises where they had their house and piggery on the ground that Flaviano had no right to sell the lot which he sold to Pamplona as the same belongs to the conjugal partnership. The spouses Pamplona refused to vacate the premises and this suit was instituted by the heirs of Monica Maniega seeking for the declaration of nullity of the deed of sale executed in the formers favor. The RTC ruled in favor of the plaintiff declaring null and void the sale with respect to 390.5 sq.m. of the total 781 sq.m. of which is rightfully owned by the plaintiffs. The RTC decision was affirmed by the CA; hence, this petition was instituted appealing the decision of the CA.Issue:Whether or not the petitioners are entitled to the full ownership of the property in litigation, or only of the same?Held:Yes, they are entitled to the full ownership of the property in litigation because at the time of the sale, the co-owner (Flaviano) as vendor pointed out its location and even indicated the boundaries over which the fences were to be erected without objection. Despite the fact that at the time of sale, there was no partition of the subject property between the co-owners and Flaviano, as vendor, had ownership of an undetermined portion of the hereditary estate which he had a perfect and legal right to dispose of to the Spouse Pamplona. According to Art. 776, the inheritance which private respondents may receive from their deceased parents includes all the property, rights and obligations of a person which are not extinguished by their parents death. In addition, under Art. 1311 of the NCC, the contract of sale executed by Flaviano took effect between the parties, their assigns and heirs which includes the private respondents; therefore, they must comply with said obligation. The petition is affirmed with modification with respect to the fact that the sale executed in favor of Spouses Pamplona is legal and valid in its entirety.Guerrero v. Bihis521 SCRA 394FACTS:Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC QC. Respondent Bihis opposed her elder sisters petition on the following grounds: the will was not executed and attested as required by law; its attestation clause and acknowledgment did not comply with the requirements of the law; the signature of the testatrix was procured by fraud and petitioner and her children procured the will through undue and improper pressure and influence. Petitioner Guerrero was appointes special administratrix. Respondent opposed petitioners appointment but subsequently withdrew her opposition. The trial court denied the probate of the will ruling that Article 806 of the Civil Code was not complied with because the will was acknowledged by the testatrix and the witnesses at the testatrixs residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a commissioned notary public for and in Caloocan City.ISSUE:Did the will acknowledged by the testatrix and the instrumental witnesses before a notary public acting outside the place of his commission satisfy the requirement under Article 806 of the Civil Code?HELD:No. One of the formalities required by law in connection with the execution of a notarial will is that it must be acknowledged before a notary public by the testator and the witnesses. 6 This formal requirement is one of the indispensable requisites for the validity of a will. 7 In other words, a notarial will that is not acknowledged before a notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate.The Notarial law provides: SECTION 240.Territorial jurisdiction. The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction.The compulsory language of Article 806 of the Civil Code was not complied with and the interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all completely void.Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant, vs.FIDEL DIANCIN, ET AL., oppositors-appellees.

Montinola, Montinola and Hilado for appellant.Lopez Vito and Lopez Vito for appellees.

MALCOLM, J.:

The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of Iloilo on the sole ground that the thumbmarks appearing thereon were not the thumbmarks of the testator. Disregarding the other errors assigned by the proponent of the will, we would direct attention to the third error which challenges squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of the will and on the left hand margin of each of its pages in the following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is detailed in nature, and disposes of an estate amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine thumbmark of Paulino Diancin, was presented. Photographs of the thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter gave as his opinion that the thumbmarks had not been made by the same person .One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The petition of the proponent of the will to permit the will to be sent to Manila to be examined by an expert was denied. On one fact only were the opposing witnesses agreed, and this was that the ink used to make the thumbmarks on the will was of the ordinary type which blurred the characteristics of the marks, whereas the thumbmark on Exhibit 8 was formed clearly by the use of the special ink required for this purpose. The trial judge expressed his personal view as being that great differences existed between the questioned marks and the genuine mar.

The requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks or fingerprints is of course admissible. The method of identification of fingerprints is a science requiring close study .Where thumb impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the questioned thumbmarks, is evident .This we do here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3 Chamberlayne on the Modern Law of Evidence, sec. 2561, notes 3.)

There is another means of approach to the question and an obvious one. The three instrumental witnesses united in testifying concerning the circumstances surrounding the execution of the will. It was stated that in addition to the testator and themselves, on other person, Diosdado Dominado, was present. This latter individual was called as a witness by the oppositors to the will to identify Exhibit 8. He was later placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that he was the one who prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The testimony of a witness called by both parties is worthy of credit.

We reach the very definite conclusion that the document presented for probate as the last will of the deceased Paulino Diancin was, in truth, his will, and that the thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly, error is found, which means that the judgment appealed from must be, as it is hereby, reversed, and the will ordered admitted to probate, without special finding as to costs in this instance.

Avancea, C.J., Johnson, Street, Villamor, Ostand, Johns, Romualdez and Villa-Real, JJ., concur.Yap Tua vs. Yap Cua Kuan and Yap Ca LluFacts:Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez. after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had executed a last will and testament; that he was present at the time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the deceased.The Judge ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the record and marked. The court further ordered that one Yap Tua be appointed as executor of the will. Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired to intervene and asked that a guardianad litembe appointed to represent them in the cause alleging That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of September, 1909, was null, for the following reasons:(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the same, due to her sickness.(c) Because her signature to the will had been obtained through fraud and illegal influenceAlso, before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by law.Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909, and to grant to said minors an opportunity to present new proof relating to the due execution of said will.

Issue:Whether of not the allegation of the respondent deserves credence

Ruling:No. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will. Said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap Caong, in her first will was not identical with that which appears in her second will. Several witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the will.During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of each other. Upon that question there is considerable conflict of proof.In this case, It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the will.Avera vs. Garcia and RodriguezFacts:In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses who testified with details not necessary to be here specified that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not introduced, nor was their absence accounted for by the proponent of the will.When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was about.After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly executed. He accordingly admitted the will to probate.

Issue:1) whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two2) whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left margin

Ruling:1) When the petition for probate of a will is contested, the proponent should introduce all three of the attesting witnesses, if alive and within reach of the process of the court; and the execution of the will cannot be considered sufficiently proved by the testimony of only one, without satisfactory explanation of the failure to produce the other two.In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith the probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses.Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to but this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial.

2) A will otherwise properly executed in accordance with the requirements of existing law is not rendered invalid by the fact that the paginal signatures of the testator and attesting witnesses appear in the right margin instead of the left.