Tison vs. Court of Appeals

582 SUPREME COURT REPORTS ANNOTATEDTison vs. Court of Appeals

G.R. No. 121027. July 31, 1997.*

CORAZON DEZOLLER TISON and RENE R. DEZOLLER,petitioners, vs. COURT OF APPEALS and TEODORADOMINGO, respondents.

Filiation Parent and Child Presumptions There is nopresumption of the law more firmly established and founded onsounder morality and more convincing reason than thepresumption that children born in wedlock are legitimate.Itseems that both the court a quo and respondent appellate courthave regrettably overlooked the universally recognizedpresumption on legitimacy. There is no presumption of the lawmore firmly established and founded on sounder morality andmore convincing reason than the presumption that children bornin wedlock are legitimate. And well settled is the rule that theissue of legitimacy cannot be attacked collaterally.

Same Same Same Actions Actions for Reconveyance Theissue of legitimacy cannot be properly controverted in an action forreconveyance.The issue, therefore, as to whether petitioners arethe legitimate children of Hermogenes Dezoller cannot beproperly controverted in the present action for reconveyance. Thisis aside, of course, from the further consideration that privaterespondent is not the proper party to impugn the legitimacy ofherein petitioners. The presumption consequently continues tooperate in favor of petitioners unless and until it is rebutted.

Same Same Same Burden of Proof The burden of proof restson the party who disputes the legitimacy of a particular party.Even

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* SECOND DIVISION.

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Tison vs. Court of Appeals

assuming that the issue is allowed to be resolved in this case, theburden of proof rests not on herein petitioners who have thebenefit of the presumption in their favor, but on privaterespondent who is disputing the same. This fact alone shouldhave been sufficient cause for the trial court to exerciseappropriate caution before acting, as it did, on the demurrer toevidence. It would have delimited the issues for resolution, as wellas the time and effort necessitated thereby.

Same Same Same Evidence In order to destroy thepresumption of legitimacy, the party against whom it operatesmust adduce substantial and credible evidence to the contrary.Ordinarily, when a fact is presumed, it implies that the party inwhose favor the presumption exists does not have to introduceevidence to establish that fact, and in any litigation where thatfact is put in issue, the party denying it must bear the burden ofproof to overthrow the presumption. The presumption oflegitimacy is so strong that it is clear that its effect is to shift theburden of persuasion to the party claiming illegitimacy. And inorder to destroy the presumption, the party against whom itoperates must adduce substantial and credible evidence to thecontrary.

Same Same Same Same A presumption is prima facie proofof the fact presumed, and unless the fact thus established primafacie by the legal presumption of its truth is disproved, it muststand as proved.Where there is an entire lack of competentevidence to the contrary, and unless or until it is rebutted, it hasbeen held that a presumption may stand in lieu of evidence andsupport a finding or decision. Perforce, a presumption must befollowed if it is uncontroverted. This is based on the theory that apresumption is prima facie proof of the fact presumed, and unlessthe fact thus established prima facie by the legal presumption ofits truth is disproved, it must stand as proved.

Same Same Same Same Pleadings and Practice When aparty opts not to present countervailing evidence to overcome thepresumption, by merely filing a demurrer to evidence instead, he orshe in effect impliedly admits the truth of such fact.Indubitably,when private respondent opted not to present countervailingevidence to overcome the presumption, by merely filing ademurrer to evidence instead, she in effect impliedly admitted thetruth of such fact. Indeed, she overlooked or disregarded theevidential rule

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584 SUPREME COURT REPORTS ANNOTATED


that presumptions like judicial notice and admissions, relieve theproponent from presenting evidence on the facts he alleged andsuch facts are thereby considered as duly proved.

Same Same Same Same Hearsay Rule Declarations AboutPedigree Conditions for the admission of declarations aboutpedigree.The primary proof to be considered in ascertaining therelationship between the parties concerned is the testimony ofCorazon Dezoller Tison to the effect that Teodora DezollerGuerrero in her lifetime, or sometime in 1946, categoricallydeclared that the former is Teodoras niece. Such a statement isconsidered a declaration about pedigree which is admissible, as anexception to the hearsay rule, under Section 39, Rule 130 of theRules of Court, subject to the following conditions: (1) that thedeclarant is dead or unable to testify (2) that the declarant berelated to the person whose pedigree is the subject of inquiry (3)that such relationship be shown by evidence other than thedeclaration and (4) that the declaration was made ante litemmotam, that is, not only before the commencement of the suitinvolving the subject matter of the declaration, but before anycontroversy has arisen thereon.

Same Evidence Hearsay Rule Declarations About PedigreeWhere the party claiming seeks recovery against a relative commonto both claimant and declarantnot from the declarant himself orthe declarants estatethe relationship of the declarant to thecommon relative may not be proved by the declaration itself, but

this requirement does not apply where it is sought to reach theestate of the declarant himself and not merely to establish a rightthrough his declarations to the property of some other member ofthe family.The general rule, therefore, is that where the partyclaiming seeks recovery against a relative common to bothclaimant and declarant, but not from the declarant himself or thedeclarants estate, the relationship of the declarant to the commonrelative may not be proved by the declaration itself. There mustbe some independent proof of this fact. As an exception, therequirement that there be other proof than the declarations of thedeclarant as to the relationship, does not apply where it is soughtto reach the estate of the declarant himself and not merely toestablish a right through his declarations to the property of someother member of the family.

Same Same Same Same Where a party claims a right to apart of the estate of the declarant, the declaration of the latter thatthe

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former is her niece is admissible and constitutes sufficient proof ofsuch relationship, notwithstanding the fact that there was no otherpreliminary evidence thereof, the reason being that suchdeclaration is rendered competent by virtue of the necessity ofreceiving such evidence to avoid a failure of justice.We aresufficiently convinced, and so hold, that the present case is oneinstance where the general requirement on evidence aliunde maybe relaxed. Petitioners are claiming a right to part of the estate ofthe declarant herself. Conformably, the declaration made byTeodora Dezoller Guerrero that petitioner Corazon is her niece, isadmissible and constitutes sufficient proof of such relationship,notwithstanding the fact that there was no other preliminaryevidence thereof, the reason being that such declaration isrendered competent by virtue of the necessity of receiving suchevidence to avoid a failure of justice. More importantly, there is inthe present case an absolute failure by all and sundry to refutethat declaration made by the decedent.

Same Same Same Same Where the subject of the

declaration is the declarants own relationship to another person,it seems absurd to require, as a foundation for the admission of thedeclaration, proof of the very fact which the declaration is offeredto establish.From the foregoing disquisitions, it may thus besafely concluded, on the sole basis of the decedents declarationand without need for further proof thereof, that petitioners arethe niece and nephew of Teodora Dezoller Guerrero. As held inone case, where the subject of the declaration is the declarantsown relationship to another person, it seems absurd to require, asa foundation for the admission of the declaration, proof of the veryfact which the declaration is offered to establish. The preliminaryproof would render the main evidence unnecessary.

Same Same Same Pleadings and Practice It is elementarythat an objection shall be made at the time when an allegedinadmissible document is offered in evidence, otherwise, theobjection shall be treated as waived.Applying the general rule inthe present case would nonetheless produce the same result. Forwhile the documentary evidence submitted by petitioners do notstrictly conform to the rules on their admissibility, we arehowever of the considered opinion that the same may be admittedby reason of private respondents failure to interpose any timelyobjection thereto at the time they were being offered in evidence.It is elementary that an objection shall be made at the time whenan alleged inadmissible

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586 SUPREME COURT REPORTS ANNOTATED


document is offered in evidence, otherwise, the objection shall betreated as waived, since the right to object is merely a privilegewhich the party may waive.

Same Same Same Same Even if certain documents areinadmissible for being hearsay, but on account of a partys failureto object thereto, the same may be admitted and considered assufficient to prove the facts therein asserted.The situation isaggravated by the fact that counsel for private respondentunreservedly crossexamined petitioners, as the lone witness, onthe documentary evidence that were offered. At no time was theissue of the supposed inadmissibility thereof, or the possible basis

for objection thereto, ever raised. Instead, private respondentscounsel elicited answers from the witness on the circumstancesand regularity of her obtention of said documents: Theobservations later made by private respondent in her comment topetitioners offer of exhibits, although the grounds therefor werealready apparent at the time these documents were beingadduced in evidence during the testimony of Corazon DezollerTison but which objections were not timely raised therein, may nolonger serve to rectify the legal consequences which resultedtherefrom. Hence, even assuming ex gratia argumenti that thesedocuments are inadmissible for being hearsay, but on account ofherein private respondents failure to object thereto, the samemay be admitted and considered as sufficient to prove the factstherein asserted.

Succession Where a decedent is survived by the spouse andnephews and nieces, the former shall be entitled to onehalf of theinheritance and the nephews and nieces to the other half.Uponthe death of Teodora Dezoller Guerrero, onehalf of the subjectproperty was automatically reserved to the surviving spouse,Martin Guerrero, as his share in the conjugal partnership.Applying the aforequoted statutory provisions, the remaining halfshall be equally divided between the widower and hereinpetitioners who are entitled to jointly inherit in their own right.Hence, Martin Guerrero could only validly alienate his totalundivided threefourths (3/4) share in the entire property toherein private respondent. Resultantly, petitioners and privaterespondent are deemed coowners of the property covered byTransfer Certificate of Title No. 374012 in the proportion of anundivided onefourth (1/4) and threefourths (3/4) share thereof,respectively.

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Actions Pleadings and Practice Demurrer to Evidence If ademurrer to evidence is granted but on appeal the order ofdismissal is reversed, the movant shall be deemed to have waivedthe right to present evidence.All told, on the basis of theforegoing considerations, the demurrer to plaintiffs evidenceshould have been, as it is hereby, denied. Nonetheless, private

respondent may no longer be allowed to present evidence byreason of the mandate under Section 1 of revised Rule 3 of theRules of Court which provides that if the motion is granted buton appeal the order of dismissal is reversed he shall be deemed tohave waived the right to present evidence.

PETITION for review on certiorari of a decision of theCourt of Appeals.

The facts are stated in the opinion of the Court.Benjamin P. Quitoriano for petitioners.Ramoso Law Office for private respondent.

REGALADO, J.:

The present appeal by certiorari seeks the reversal of thejudgment rendered by respondent Court of Appeals onJune 30, 1995

1 which affirmed the Order of December 3,

1992 issued by the Regional Trial Court of Quezon City,Branch 98, granting herein private respondents Demurrerto Plaintiffs Evidence filed in Civil Case No. Q881054pending therein.

The present appellate review involves an action forreconveyance filed by herein petitioners against hereinprivate respondent before the Regional Trial Court ofQuezon City, Branch 98, docketed as the aforesaid CivilCase No. Q881054, over a parcel of land with a house andapartment thereon located at San Francisco del Monte,Quezon City and which was originally owned by thespouses Martin Guerrero and Teodora Dezoller Guerrero. Itappears that petitioners Corazon Tison and Rene Dezollerare the niece and nephew,

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1 Penned by Associate Justice Gloria C. Paras, with Associate JusticesQuirino Abad Santos, Jr. and Delilah Vidallon Magtolis, concurringAnnex K, Petition, Rollo, 74.

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respectively, of the deceased Teodora Dezoller Guerrerowho is the sister of petitioners father, Hermogenes

(1)

(2)

(3)

(4)

Dezoller. Teodora Dezoller Guerrero died on March 5, 1983without any ascendant or descendant, and was survivedonly by her husband, Martin Guerrero, and hereinpetitioners. Petitioners father, Hermogenes, died onOctober 3, 1973, hence they seek to inherit from TeodoraDezoller Guerrero by right of representation. The recordsreveal that upon the death of Teodora Dezoller Guerrero,her surviving spouse, Martin, executed on September 15,1986 an Affidavit of Extrajudicial Settlement

2 adjudicating

unto himself, allegedly as sole heir, the land in disputewhich is covered by Transfer Certificate of Title No. 66886,as a consequence of which Transfer Certificate of Title No.358074 was issued in the name of Martin Guerrero. OnJanuary 2, 1988, Martin Guerrero sold the lot to hereinprivate respondent Teodora Domingo and thereafter,Transfer Certificate of Title No. 374012 was issued in thelatters name.

Martin Guerrero died on October 25, 1988.Subsequently, herein petitioners filed an action forreconveyance on November 2, 1988, claiming that they areentitled to inherit onehalf of the property in question byright of representation.

At the pretrial conference, the following issues werepresented by both parties for resolution:

whether or not the plaintiffs (herein petitioners) arethe nephew and niece of the late Teodora Dezollerwhether or not the plaintiffs are entitled to inheritby right of representation from the estate of the lateTeodora Dezollerwhether or not defendant (herein privaterespondent) must reconvey the reservedparticipation of the plaintiffs to the estate of thelate Teodora Dezoller under Section 4, Rule 74 ofthe Rules of Court which was duly annotated on thetitle of the defendantwhether or not the plaintiffs are entitled todamages, moral and exemplary, plus attorneys feesfor the willful and

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2 Annex B, id. ibid., 41.

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VOL. 276, JULY 31, 1997 589Tison vs. Court of Appeals

malicious refusal of defendant to reconvey the participation ofplaintiffs in the estate of Teodora Dezoller, despite demands andknowing fully well that plaintiffs are the niece and nephew of saiddeceased and

(5) whether or not the subject property now in litigation can beconsidered as conjugal property of the spouses Martin Guerreroand Teodora Dezoller Guerrero.

3

During the hearing, petitioner Corazon Dezoller Tison waspresented as the lone witness, with the followingdocumentary evidence offered to prove petitioners filiationto their father and their aunt, to wit: a family picturebaptismal certificates of Teodora and Hermogenes Dezollercertificates of destroyed records of birth of Teodora Dezollerand Hermogenes Dezoller death certificates ofHermogenes Dezoller and Teodora Dezoller Guerrerocertification of destroyed records of live birth of Corazonand Rene Dezoller joint affidavits of Pablo Verzosa andMeliton Sitjar attesting to the parents, date and place ofbirth of Corazon and Rene Dezoller joint affidavit ofJuliana Cariaga and Manuela Cariaga attesting to the factof marriage between Martin Guerrero and TeodoraDezoller and the marriage certificate of Martin andTeodora Guerrero.

4 Petitioners thereafter rested their case

and submitted a written offer of these exhibits to which aComment

5 was filed by herein private respondent.

Subsequently, private respondent filed a Demurrer toPlaintiffs Evidence on the ground that petitioners failed toprove their legitimate filiation with the deceased TeodoraGuerrero in accordance with Article 172 of the FamilyCode. It is further averred that the testimony of petitionerCorazon Dezoller Tison regarding her relationship with heralleged father and aunt is selfserving, uncorroborated andincompetent, and that it falls short of the quantum of proofrequired under Article 172 of the Family Code to establishfiliation. Also, the certification issued by the Office of theLocal Civil

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3 Original Record, 207208.4 Ibid., 224229.

5 Ibid., 233234.

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Registrar of Himamaylan, Negros Occidental is merelyproof of the alleged destruction of the records referred totherein, and the joint affidavit executed by Pablo Verzosaand Meliton Sitjar certifying to the date, place of birth andparentage of herein petitioners is inadmissible for beinghearsay since the affiants were never presented for crossexamination.

6

On December 3, 1992, the trial court issued an ordergranting the demurrer to evidence and dismissing thecomplaint for reconveyance.

7

In upholding the dismissal, respondent Court of Appealsdeclared that the documentary evidence presented byherein petitioners, such as the baptismal certificates,family picture, and joint affidavits are all inadmissible andinsufficient to prove and establish filiation. Hence, thisappeal.

We find for petitioners.The bone of contention in private respondents demurrer

to evidence is whether or not herein petitioners failed tomeet the quantum of proof required by Article 172 of theFamily Code to establish legitimacy and filiation. There aretwo points for consideration before us: first is the issue onpetitioners legitimacy, and second is the questionregarding their filiation with Teodora Dezoller Guerrero.

I. It is not debatable that the documentary evidenceadduced by petitioners, taken separately andindependently of each other, are not per se sufficient proofof legitimacy nor even of pedigree. It is important to note,however, that the rulings of both lower courts in the caseare basically premised on the erroneous assumption that,in the first place, the issue of legitimacy may be validlycontroverted in an action for reconveyance, and, in thesecond place, that herein petitioners have the onusprobandi to prove their legitimacy and, corollarily, theirfiliation. We disagree on both counts. It seems that boththe court a quo and respondent appellate court haveregrettably overlooked the universally recog

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6 Ibid., 259267.7 Ibid., 275.

591


nized presumption on legitimacy. There is no presumptionof the law more firmly established and founded on soundermorality and more convincing reason than the presumptionthat children born in wedlock are legitimate.

8 And well

settled is the rule that the issue of legitimacy cannot beattacked collaterally.

The rationale for these rules has been explained in thiswise:

The presumption of legitimacy in the Family Code x x x actuallyfixes a civil status for the child born in wedlock, and that civilstatus cannot be attacked collaterally. The legitimacy of the childcan be impugned only in a direct action brought for that purpose,by the proper parties, and within the period limited by law.

The legitimacy of the child cannot be contested by way ofdefense or as a collateral issue in another action for a differentpurpose. The necessity of an independent action directlyimpugning the legitimacy is more clearly expressed in theMexican Code (Article 335) which provides: The contest of thelegitimacy of a child by the husband or his heirs must be made byproper complaint before the competent court any contest made inany other way is void. This principle applies under our FamilyCode. Articles 170 and 171 of the code confirm this view, becausethey refer to the action to impugn the legitimacy. This actioncan be brought only by the husband or his heirs and within theperiods fixed in the present articles.

Upon the expiration of the periods provided in Article 170, theaction to impugn the legitimacy of a child can no longer bebrought. The status conferred by the presumption, therefore,becomes fixed, and can no longer be questioned. The obviousintention of the law is to prevent the status of a child born inwedlock from being in a state of uncertainty for a long time. Italso aims to force early action to settle any doubt as to thepaternity of such child, so that the evidence material to thematter, which must necessarily be facts occurring during the

period of the conception of the child, may still be easily available.x x x

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8 Jones, Commentaries on Evidence, Vol. 1, 2nd ed., 118119.

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Only the husband can contest the legitimacy of a child born to hiswife. He is the one directly confronted with the scandal andridicule which the infidelity of his wife produces and he shoulddecide whether to conceal that infidelity or expose it, in view ofthe moral and economic interest involved. It is only in exceptionalcases that his heirs are allowed to contest such legitimacy.Outside of these cases, noneeven his heirscan impugnlegitimacy that would amount to an insult to his memory.

9

The issue, therefore, as to whether petitioners are thelegitimate children of Hermogenes Dezoller cannot beproperly controverted in the present action forreconveyance. This is aside, of course, from the furtherconsideration that private respondent is not the properparty to impugn the legitimacy of herein petitioners. Thepresumption consequently continues to operate in favor ofpetitioners unless and until it is rebutted.

Even assuming that the issue is allowed to be resolvedin this case, the burden of proof rests not on hereinpetitioners who have the benefit of the presumption intheir favor, but on private respondent who is disputing thesame. This fact alone should have been sufficient cause forthe trial court to exercise appropriate caution before acting,as it did, on the demurrer to evidence. It would havedelimited the issues for resolution, as well as the time andeffort necessitated thereby.

Ordinarily, when a fact is presumed, it implies that theparty in whose favor the presumption exists does not haveto introduce evidence to establish that fact, and in anylitigation where that fact is put in issue, the party denyingit must bear the burden of proof to overthrow thepresumption.

10 The presumption of legitimacy is so strong

that it is clear that its effect is to shift the burden of

persuasion to the party claiming illegitimacy.11 And in

persuasion to the party claiming illegitimacy.11 And in

order to destroy the presumption,

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9 Tolentino, A., Civil Code of the Philippines, Commentaries andJurisprudence, Vol. 1, 1990 ed., 535537.

10 Op. cit., 535.11 Jones on Evidence, Vol. 1, 5th ed., 178.

593


the party against whom it operates must adducesubstantial and credible evidence to the contrary.

12

Where there is an entire lack of competent evidence tothe contrary,

13 and unless or until it is rebutted, it has been

held that a presumption may stand in lieu of evidence andsupport a finding or decision.

14 Perforce, a presumption

must be followed if it is uncontroverted. This is based onthe theory that a presumption is prima facie proof of thefact presumed, and unless the fact thus established primafacie by the legal presumption of its truth is disproved, itmust stand as proved.

15

Indubitably, when private respondent opted not topresent countervailing evidence to overcome thepresumption, by merely filing a demurrer to evidenceinstead, she in effect impliedly admitted the truth of suchfact. Indeed, she overlooked or disregarded the evidentialrule that presumptions like judicial notice and admissions,relieve the proponent from presenting evidence on the factshe alleged and such facts are thereby considered as dulyproved.

II. The weight and sufficiency of the evidence regardingpetitioners relationship with Teodora Dezoller Guerrero,whose estate is the subject of the present controversy,requires a more intensive and extensive examination.

Petitioners evidence, as earlier explained, consistsmainly of the testimony of Corazon Dezoller Tison, thebaptismal, death and marriage certificates, the variouscertifications from the civil registrar, a family picture, andseveral joint affidavits executed by third persons all ofwhich she identified and explained in the course and as

part of her testimony.The primary proof to be considered in ascertaining the

relationship between the parties concerned is the testimonyof Corazon Dezoller Tison to the effect that TeodoraDezoller

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12 95 ALR 883.13 31A CJS, Evidence, Sec. 114, 195.14 Ibid., Sec. 119, 216.15 Brawsell vs. Tindall, 294 SW 2d 685.

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Guerrero in her lifetime, or sometime in 1946, categoricallydeclared that the former is Teodoras niece.

16 Such a

statement is considered a declaration about pedigree whichis admissible, as an exception to the hearsay rule, underSection 39, Rule 130 of the Rules of Court, subject to thefollowing conditions: (1) that the declarant is dead orunable to testify (2) that the declarant be related to theperson whose pedigree is the subject of inquiry (3) thatsuch relationship be shown by evidence other than thedeclaration and (4) that the declaration was made antelitem motam, that is, not only before the commencement ofthe suit involving the subject matter of the declaration, butbefore any controversy has arisen thereon.

There is no dispute with respect to the first, second andfourth elements. What remains for analysis is the thirdelement, that is, whether or not the other documentsoffered in evidence sufficiently corroborate the declarationmade by Teodora Dezoller Guerrero in her lifetimeregarding the pedigree of petitioner Corazon Dezoller Tisonor, if at all, it is necessary to present evidence other thansuch declaration.

American jurisprudence has it that a distinction must bemade as to when the relationship of the declarant may beproved by the very declaration itself, or by otherdeclarations of said declarant, and when it must besupported by evidence aliunde. The rule is stated thus:

One situation to be noted is that where one seeks to set up aclaim through, but not from, the declarant and to establish theadmissibility of a declaration regarding claimants pedigree, hemay not do so by declarants own statements as to declarantsrelationship to the particular family. The reason is thatdeclarants declaration of his own relationship is of a selfservingnature. Accordingly there must be precedent proof from othersources that declarant is what he claimed to be, namely, amember of the particular family otherwise the requirement toadmissibility that declarants relationship to the common familymust appear is not met. But when the party claiming seeks toestablish relationship in order to claim

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16 TSN, February 14, 1992, 58.

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directly from the declarant or the declarants estate, the situationand the policy of the law applicable are quite different. In suchcase the declaration of the decedent, whose estate is in controversy,that he was related to the one who claims his estate, is admissiblewithout other proof of the fact of relationship. While the nature ofthe declaration is then disserving, that is not the real ground forits admission. Such declarations do not derive their evidentialvalue from that consideration, although it is a useful, if not anartificial, aid in determining the class to which the declarationsbelong. The distinction we have noted is sufficiently apparent inthe one case the declarations are selfserving, in the other they arecompetent from reasons of necessity.

17

(Italics ours.)

The general rule, therefore, is that where the partyclaiming seeks recovery against a relative common to bothclaimant and declarant, but not from the declarant himselfor the declarants estate, the relationship of the declarantto the common relative may not be proved by thedeclaration itself. There must be some independent proof ofthis fact.

18 As an exception, the requirement that there be

other proof than the declarations of the declarant as to therelationship, does not apply where it is sought to reach theestate of the declarant himself and not merely to establish

a right through his declarations to the property of someother member of the family.

19

We are sufficiently convinced, and so hold, that thepresent case is one instance where the general requirementon evidence aliunde may be relaxed. Petitioners areclaiming a right to part of the estate of the declarantherself. Conformably, the declaration made by TeodoraDezoller Guerrero that petitioner Corazon is her niece, isadmissible and constitutes sufficient proof of suchrelationship, notwithstanding the fact that there was noother preliminary evidence thereof, the reason being thatsuch declaration is rendered competent by

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17 Jones, Commentaries on Evidence, Vol. 3, 2nd ed., 20942095.18 Op. cit., 2096.19 Op. cit., 2098.

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virtue of the necessity of receiving such evidence to avoid afailure of justice.

20 More importantly, there is in the present

case an absolute failure by all and sundry to refute thatdeclaration made by the decedent.

From the foregoing disquisitions, it may thus be safelyconcluded, on the sole basis of the decedents declarationand without need for further proof thereof, that petitionersare the niece and nephew of Teodora Dezoller Guerrero. Asheld in one case,

21 where the subject of the declaration is

the declarants own relationship to another person, itseems absurd to require, as a foundation for the admissionof the declaration, proof of the very fact which thedeclaration is offered to establish. The preliminary proofwould render the main evidence unnecessary.

Applying the general rule in the present case wouldnonetheless produce the same result. For while thedocumentary evidence submitted by petitioners do notstrictly conform to the rules on their admissibility, we arehowever of the considered opinion that the same may beadmitted by reason of private respondents failure tointerpose any timely objection thereto at the time theywere being offered in evidence.

22 It is elementary that an

were being offered in evidence.22 It is elementary that an

objection shall be made at the time when an allegedinadmissible document is offered in evi

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20 In re Clarks Estate, 110 P. 828.21 Hartmans Estate, 107 P. 105, cited in Moran, Comments on the

Rules of Court, Vol. 5, 1980 ed., 322.22 On offer of evidence, the Rules of Court pertinently provide:

Sec. 35. When to make offer.x x x Documentary and object evidence shall beoffered after the presentation of a partys testimonial evidence. Such offer shall bedone orally unless allowed by the Court to be done by writing.

Sec. 36. Objection.Objection to evidence offered orally must be madeimmediately after the offer is made. Objection to a question propounded in thecourse of the oral examination of a witness shall be made as soon as the groundstherefor shall become reasonably apparent.

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dence,23 otherwise, the objection shall be treated as

waived,24 since the right to object is merely a privilege

which the party may waive.25

As explained in Abrenica vs. Gonda, et al.,26 it has been

repeatedly laid down as a rule of evidence that a protest orobjection against the admission of any evidence must bemade at the proper time, otherwise it will be deemed tohave been waived. The proper time is when from thequestion addressed to the witness, or from the answerthereto, or from the presentation of the proof, theinadmissibility of the evidence is, or may be inferred.

Thus, a failure to except to the evidence because it doesnot conform with the statute is a waiver of the provisions ofthe law. That objection to a question put to a witness mustbe made at the time the question is asked. An objection tothe admission of evidence on the ground of incompetency,taken after the testimony has been given, is too late.

27

Thus, for instance, failure to object to parol evidence givenon the stand, where the party is in a position to object, is awaiver of any objections thereto.

28

The situation is aggravated by the fact that counsel for

private respondent unreservedly crossexamined petitioners,as the lone witness, on the documentary evidence that wereoffered. At no time was the issue of the supposedinadmissibility thereof, or the possible basis for objectionthereto, ever raised. Instead, private respondents counselelicited answers from the witness on the circumstances andregularity of her obtention of said documents: Theobservations later made by

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23 Martin, Rules of Court, Vol. 5, 3rd ed., 611.24 People vs. De la Cruz, G.R. No. 108180, February 8, 1994, 229 SCRA

754.25 Moran, Comments on the Rules of Court, Vol. 6, 1980 ed., 125.26 34 Phil. 745 (1916).27 Conlu vs. Araneta, et al., 15 Phil. 387 (1910).28 See Talosig vs. Vda. De Nieba, et al., G.R. No. L29557, February 29,

1972, 43 SCRA 472.

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private respondent in her comment to petitioners offer ofexhibits, although the grounds therefor were alreadyapparent at the time these documents were being adducedin evidence during the testimony of Corazon Dezoller Tisonbut which objections were not timely raised therein, mayno longer serve to rectify the legal consequences whichresulted therefrom. Hence, even assuming ex gratiaargumenti that these documents are inadmissible for beinghearsay, but on account of herein private respondentsfailure to object thereto, the same may be admitted andconsidered as sufficient to prove the facts thereinasserted.

29

Accordingly, the Certificate of Marriage (Exhibit S)wherein it is indicated that the parents of Teodora Dezollerare Isabelo Dezoller and Cecilia Calpo, as well as theCertificates of Baptism of Teodora Dezoller

30 (Exhibit H)

and Hermogenes Dezoller (Exhibit J) which both reflect thenames of their parents as Isabelo Dezoller and CeciliaCalpo, to show that Hermogenes Dezoller is the brother ofTeodora Dezoller Guerrero and the Death Certificate of

Hermogenes Dezoller (Exhibit K) the entries wherein weremade by petitioner Corazon Dezoller Tison as his daughter,together with the Joint Affidavits of Pablo Verzosa andMeliton Sitjar (Exhibits N and P), to prove that hereinpetitioners are the children of Hermogenes Dezollerthesecan be deemed to have sufficiently established therelationship between the declarant and herein petitioners.This is in consonance with the rule that a prima facieshowing is sufficient and that only slight proof of therelationship is required.

31 Finally, it may not be amiss to

consider as in the nature of circumstantial evidence thefact that both the declarant and the claimants, who are thesubject of the declaration, bear the surname Dezoller.

32

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29 Op. cit., 128.30 This parochial record is an official document, having been made prior

to the passage of G.O. No. 68 and Act No. 190 (U.S. vs. Evangelista, 29Phil. 215 [1915], and cases therein cited).

31 Fulkerson, et al. vs. Holmes, et al., 117 U.S. 389.32 Francisco, Rules of Court, Vol. 7, 1973 ed., 494.

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III. The following provisions of the Civil Code provide forthe manner by which the estate of the decedent shall bedivided in this case, to wit:

Art. 975. When children of one or more brothers or sisters of thedeceased survive, they shall inherit from the latter byrepresentation, if they survive with their uncles or aunts. But ifthey alone survive, they shall inherit in equal portions.

Art. 995. In the absence of legitimate descendants andascendants, and illegitimate children and their descendants,whether legitimate or illegitimate, the surviving spouse shallinherit the entire estate, without prejudice to the rights ofbrothers and sisters, nephews and nieces, should there be any,under Article 1001.

Art. 1001. Should brothers and sisters or their childrensurvive with the widow or widower, the latter shall be entitled toonehalf of the inheritance and the brothers and sisters or their

children to the other half.

Upon the death of Teodora Dezoller Guerrero, onehalf ofthe subject property was automatically reserved to thesurviving spouse, Martin Guerrero, as his share in theconjugal partnership. Applying the aforequoted statutoryprovisions, the remaining half shall be equally dividedbetween the widower and herein petitioners who areentitled to jointly inherit in their own right. Hence, MartinGuerrero could only validly alienate his total undividedthreefourths (3/4) share in the entire property to hereinprivate respondent. Resultantly, petitioners and privaterespondent are deemed coowners of the property coveredby Transfer Certificate of Title No. 374012 in theproportion of an undivided onefourth (1/4) and threefourths (3/4) share thereof, respectively.

All told, on the basis of the foregoing considerations, thedemurrer to plaintiffs evidence should have been, as it ishereby, denied. Nonetheless, private respondent may nolonger be allowed to present evidence by reason of themandate under Section 1 of revised Rule 3 of the Rules ofCourt which provides that if the motion is granted but onappeal

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the order of dismissal is reversed he shall be deemed tohave waived the right to present evidence.

33

WHEREFORE, the questioned judgment of respondentCourt of Appeals is hereby REVERSED and SET ASIDE,and herein petitioners and private respondent are declaredcoowners of the subject property with an undivided onefourth (1/4) and threefourths (3/4) share therein,respectively.

SO ORDERED.

Romero, Puno and Mendoza, JJ., concur.Torres, Jr., J., On leave.

Judgment reversed and set aside.

Notes.Hearsay evidence alone may be insufficient toestablish a fact in an injunction suit but, when no objection

is made thereto, it is, like any other evidence, to beconsidered and given the importance it deserves. (TopWeldManufacturing, Inc. vs. ECED, S.A., 138 SCRA 118 [1985])

Photographs of a person at baptism and in the house donot prove that he is the father. (Fernandez vs. Court ofAppeals, 230 SCRA 130 [1994])

o0o

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33 This amendatory provision under the 1997 Rules of Civil Procedure,which took effect on July 1, 1997, is substantially the same as theantecedent provision in Sec. 1, Rule 35: However, if the motion is grantedand the order of dismissal is reversed on appeal, the movant loses hisright to present evidence in his behalf.

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Tison vs. Court of Appeals