G.R. No. 1380. January 18, 1904

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3 Phil. 195

[ G.R. No. 1380. January 18, 1904 ]




This is an appeal interposed by means of a bill of exceptions by
the plaintiff, Consolacion Mijares y Borromeo, against the decision
of April 11, 1903, rendered in favor of the defendants Delfina Nery,
Carmen Mijares y Nery, and others, with the costs.

In the year 1899, the date and the month not having been
established, Don Mariano Mijares died in the Province of Albay
leaving property of the estimated value of 80,000 pesos. The deceased
at the time of his death had no legitimate heirs, descendant or
ascendant, but left a daughter, the present plaintiff, born in 1862
out of wedlock, although legally recognized as a natural child. He
likewise left five other daughters born in like manner of Delfina
Nery, who was a niece of the deceased, which said five daughters, who
were born successively from the year 1862 until 1889, were
acknowledged expressly and tacitly by Don Mariano Mijares during his
lifetime as his own daughters. It does not appear why said Mijares
and Nery never married notwithstanding the fact that a bull was
issued on January 23, 1878, by Pope Pius IX authorizing the marriage
of the deceased with his niece, Delfina Nery, as shown by a copy of
said bull which was presented to the court.

Acting on the supposition that Don Mariano Mijares died intestate,
the plaintiff, Consolacion Mijares y Borromeo, alleging that she is
the sole natural daughter of the deceased recognized by him, and that
he left no legitimate descendants or ascendants, contends that she is
the sole heir to her father’s estate by reason of the fact that the
five defendants, daughters of Delfina Nery, a niece of her said
father, are illegitimate daughters, without the status of natural
children under law 11 of Toro, in force on the date of the birth of
said defendants, she therefore brought suit to be declared the sole
universal heir ab intestate to her father’s estate, and asks
judgment in her favor as to the ownership and possession of the
hereditary property held by the defendants, praying that they be
ordered to make delivery thereof to her.

The defendants opposed this claim, alleging that although it is
true that the daughters of the, deceased by his niece Delfina Nery,
being illegitimate, could not enjoy the status of natural children
under law 11 of Toro in force at the time of their birth,
nevertheless under the Civil Code, which became operative in the
Philippine Islands in 1880, they acquired the status of natural
children, entitled to inherit, because they were acknowledged by
their late father, and because, according to a will and codicil
executed by the deceased during his lifetime, they were entitled to
the several parts of the estate therein bequeathed to them, since the
deceased had instituted all his daughters as his heirs in equal
parts. It does not appear that the judge made any findings as to the
validity or invalidity of the will and codicil, which were presented
during the trial.

According to law 11 of Toro, which subsequently became Law 1,
title 5, book 10 of the Novisima Recopilacion, natural
children are those whose parents at the time of the conception or
birth of the children were not disqualified to marry, provided that
their fathers recognize them to be their children, although they may
not have kept in their home the women by whom they may have had such

It follows, therefore, that children born of parents who at the
time either of the birth or conception of their offspring were
disqualified to marry by reason of some impediment, whether removable
by dispensation or not, could not possess the status of natural
children. This was the old law which governed as to natural children,
but which has been modified by the Civil Code, which has confined to
the time of conception the period at which the parents must be free
to marry, with or without dispensation.

Article 119 of the Civil Code says: “Only natural children
may be legitimized. Natural children are those born out of wedlock of
parents who at the time of the conception of the children could have
married with or without dispensation.”

From the context of this article it is evident that the first
difference to be observed between law 11 of Toro and article 119 of
the Civil Code consists in that according to the latter, in order to
determine whether a child born out of wedlock is or is not a natural
child, it is necessary to consider only the time of its
conception—that is to say, to determine whether during any one of
the first one hundred and twenty days of the three hundred preceding
the birth of the child the parents were qualified to marry with or
without dispensation, applying article 108, paragraph 2, of the Civil
Code in the determination of the time of conception.

The second difference consists In that the code has placed on the
same footing persons who could not marry without dispensation, and
those who, because under no disability, could freely contract
marriage. These provisions are entirely at variance with those
contained in the law of Toro cited.

In order that their offspring might have the status of natural
children it did not suffice that the father and mother could have
married without despensation at the time of the conception or of the
birth, but it was necessary, in addition thereto, according to the
law of Toro, that the father should acknowledge the child as his.

Article 129 of the Civil Code provides: “A natural child may
be acknowledged by the father and mother jointly or by only one of
them.” Article 131 prescribes the form in which the
acknowledgment of the natural child should be made. This
acknowledgment is to a certain extent one of the rights of the
natural child with respect to his parents, who are obliged to make
such acknowledgment in the cases respectively set forth in articles
135 and 136 of the code, which became operative in these Islands on
December 7, 1889, twenty days after its publication, which took place
on the 17th of November of the same year.

The plaintiff and the five sisters, defendants, were born out of
wedlock, and were acknowledged by Don Mariano Mijares, their father,
as his daughters. The plaintiff was born of a woman whose name does
not appear, and the five defendants were had with his niece, Delfina
Nery, whom he might have married, notwithstanding the impediment of
consanguinity, by virtue of the pontifical bull above referred to. If
the plaintiff should be considered as an acknowledged natural child
in accordance with law 11 of Toro, the live sisters, defendants,
merit the same consideration as acknowledged natural children in
accordance with article 119 of the Civil Code in relation to rule 1,
part 2 of the transitory provisions thereof.

Notwithstanding the fact that the five daughters of Mijares had
with Delfina Nery were born at a time when the old law was in force
and prior to the enactment of the present Civil Code, it is
nevertheless indisputable that the legal relations and the rights
originated from the birth of the defendants and from their
acknowledgment by their father, facts which took place under the
former law, are to be determined by the Civil Code by virtue of
paragraph 2 of rule 1 of the transitory provisions above cited.

This second paragraph says: “But if the right is declared for
the first time in this code it shall be effective at once, even when
the act which gave rise thereto may have taken place under the prior
legislation, provided it does not prejudice other vested rights
having the same origin.”

The five daughters of Mijares with his niece, Nery, acquired the
status of natural children by virtue of article 119 of the Civil
Code, because at the time of their conception the disability of their
illegitimate parents to marry might have been removed by means of a
dispensation, which in fact they subsequently obtained. This right to
the status of natural children of their father who acknowledged them
expressly and tacitly, was unknown to the former law, inasmuch as
said law 11 of Toro required as a condition that the parents of a
natural child should be qualified to marry at the time of the
conception or the birth thereof, without dispensation, and
it therefore results that it is a new right for the first time
declared by the Civil Code in article 119 cited.

In the commissioner’s preface to the Civil Code the following
appears: “And whereas all rights originate necessarily from some
fact, either dependent upon or independent of the will of man, the
date of this fact, which may be prior or subsequent to the
promulgation of this code, should determine the law which is to be
applied to the right originated thereby. * * * But in the case of a
new right for the first time declared in the code, and not recognized
by the previous legislation, it should be governed by the code even
though the fact wherefrom it originated should have occurred under
the former law, unless it prejudices another right vested under that
law;because in this case the one about to suffer the injury is more
entitled to consideration than the one who is about to receive a
gratuitous benefit. This doctrine was applied by the supreme court of
Spain in its decision of June 28,1896.

It is therefore undeniable that by virtue of the provisions of
paragraph 2 of rule 1 of the transitory provisions of the Code,
article 119 operates retroactively in favor of the defendants,
daughters of Mi j ares by his niece, Delfina Nery, since the Code has
relieved them of the status of incestuous children, declaring them to
be natural children because born of parents qualified to marry, and
vesting them with all the rights inherent in acknowledged natural

Assuming that the five defendants were born prior to December 18,
1899, the date of General Orders, No. 68, of the Military Governor,
winch put in force a new law as to marriage, and that the death of
Mijares, their father, took place likewise prior to the time when
said general orders went into force, it is evident that the
provisions of this law are not to be given a retroactive effect, and
are not applicable to the rights of the defendants. It is not
necessary or timely to express an opinion as to what the effect of
General Orders, No. 68, would be upon the rights of the defendants
were the facts such as to make it applicable.

As a consequence of what has been stated, it is proper that we
should now treat of the rights of natural children as regards the
estate of their parents, confining at all times the quotations of the
legal provisions to the questions at issue in this litigation.

When a father died intestate, his natural children, in the absence
of legitimate issue or their legitimate descendants, inherited only a
sixth part of his estate, which they shared with their mother, even
though the father at the time of his death should have left a lawful
wife. (Laws 8 and 9, title 13, partida 6.) In the absence of
legitimate descendants or ascendants or collateral relatives within
the fourth degree, inclusive, the natural children took the whole
estate as lawful heirs to the exclusion of the widow and collateral
relatives of the fifth and subsequent degrees. (Law of May 16,1835.)

The natural child was never a forced heir of his father by will;
but in the absence of legitimate children, he was the forced heir of
the mother, testate or intestate.

A father leaving legitimate children and descendants could leave
one-fifth of his property to his natural children. In the absence of
such legitimate heirs and descendants he could by will dispose of
such part of his estate as he might wish, even should there be
ascendants. (Law 10 of Toro, or law 6, title 2, book 10, of the
Novisima Recopilacion.)

As may be seen, the natural child, according to the old law, did
not have, with respect to the succession of the father, the same
right as with respect to the estate of the mother, aside from the
right to support.

The Civil Code gave to acknowledged natural children the right to
a legal portion from which they can not be excluded by legitimate
descendants or ascendants, or by the husband or wife; but this
hereditary portion can not be equal to that of the legitimate

One-half of the legal portion which corresponds to each one of the
legitimate children who have received no betterment, is that
prescribed by article 843 of the code as the hereditary portion of
acknowledged natural children, provided it does not exceed the third
part of the free property. When a testator does not leave legitimate
children or descendants, but leaves legitimate ascendants,
acknowledged natural children are entitled to one-half of that part
of the estate which is at the free disposal of the testator, without
prejudice to the widow’s legal portion. (Arts. 836 and 841 of the
Civil Code.)

When the testator leaves no legitimate descendants or ascendants,
acknowledged natural children are entitled to one-third part of the
estate according to article 842 of the code. The remaining two-thirds
may be disposed of at will by the parent, subject to the usufructuary
interest of the widow.

In intestate successions, the law grants the inheritance to the
legitimate and natural relations of the deceased, to the widow or to
the widower, and to the State. In the absence of legitimate
descendants or ascendants, natural children legally acknowledged
succeed their parents, if intestate, in the whole of their property,
as do also natural children legitimized by royal concession. (Art.
939, Civil Code.) But if the deceased who dies intestate should leave
legitimate descendants or ascendants, natural children and
legitimized children are only entitled to the part of the estate
assigned them by articles 840 and 841. (Art.942, Civil Code.)

The following question now arises, When does the right to inherit
vest? As an answer thereto we shall quote a part of the
commissioner’s preface to the code, applicable thereto, which is as
follows: “If the existence, efficiency, or extent of the right
depends on events independent of the will of the person who possesses
the right, he may have an expectancy but not a vested right. For this
reason the legal heirs and instituted heirs, as well as the legatees
of persons still alive, have no vested right until the death of the
latter, because the existence of the right they may enjoy in the
future is subject to the contingency of their own demise, the
vicissitudes of fortune, and the free and variable will of the

So that with them until the death of the person from whom the
estate is to proceed, hereditary rights can not be considered as
vested or fully acquired. Mijares died in 1899, as is shown in the
bill of exceptions. Therefore the right of his acknowledged natural
daughters—the plaintiff and the five defendants—to succeed to his
estate, vested in the same year under the Civil Code. Their status as
acknowledged natural children did not give them a vested right to
inherit until the death of their father, and consequently the
provisions of the Civil Code are to be applied to the succession of
the estate of Mijares. (Rule 12 of the transitory provisions.)

The jurisprudence established by the supreme court of Spain in the
decision of June 24,1897, confirms the doctrine of the question
quoted from the commissioner’s preface to the code, because it says:
“The succession of a person being open on the day of his death,
which was subsequent to the publication of the Civil Code, the latter
is applicable, in accordance with the first and penultimate clauses
of the transitory provisions, to a suit for the determination of the
right to the estate, because the principle of the non-retroactive
effect of a new law only governs in1 the case of rights vested under
the old law, and it is elementary that hereditary rights do not vest
until the death of the person whose succession is involved. Therefore
the court below did not violate laws 11 and 12, title 13, partida 6,
and the transitory provisions of the Civil Code by so deciding.”

Now then: Can the rights of the plaintiff be considered impaired
and injured by the fact that the defendants have obtained the status
of natural children, according to article 119 of the code, by virtue
of the retroactive principle laid down in rule 1 of the transitory
provisions of the code? We believe not, because the plaintiff, as the
elder daughter of Mijares, could not have been prejudiced by the
birth of the latter’s other children, even if had with another woman.
All, as natural daughters of the same father, enjoyed and still
enjoy, all the rights which the law grants them, and the one as well
as the others have a right to life and to the protection of the law.

As to their respective successory rights, it has already been
stated that they originate only from the moment of the death of their
father, which took place when the Civil Code was already in force,
and therefore the provisions of the same are perfectly applicable to
the succession, testate or intestate, of the deceased, as prescribed
by rule 12 of the transitory provisions of said code.

It must be borne in mind that a successory right is a mere
creation of positive law, which is always conformable to the
principles of natural law, and the successor of a deceased person has
no right to the estate other than that established by the law and
recognized in his favor. This is confirmed by transitory provision No.

One of the rights conferred upon an acknowledged natural child by
article 134 of the Civil Code is that of receiving the legal portion
determined by the code according to each case.

Can this successory right be considered as having vested in the
plaintiff, Consolacion, prior to the death of her natural father in
1899? Undoubtedly not, since she only had the expectancy of
inheriting, a potential right which could only become effective upon
the death of her father, and this in accordance with the code, since
natural children, according to the former law had no right to a legal
portion. (Laws 8 and 9, title 13, partida 6.) The doctrine laid down
by the decision of the supreme court of Spain, June 24, 1897, as well
as the part of the code, commissioner’s preface, before quoted,
supports our conclusion.

If, therefore, the plaintiff had no vested right to the succession
of her natural father until the latter’s death, which occurred when
the Civil Code was already in force; if the exercise of said right
did not depend on her will, and was a mere expectancy until the death
of her father—and if successory rights and their respective extent
are to be governed by the provisions of the code, under no
possibility can it be held that the decision that the defendants are
acknowledged natural children, made by virtue of said article 119 of
the Civil Code, giving it a retroactive effect according to the first
of the transitory provisions, injures or prejudices the right of the
plaintiff, because this right was not vested or acquired until the
death of her father, which took place when the new code, in
accordance with the provisions whereof the questions at issue in this
litigation must be decided, was already operative.

It is therefore unquestionable that the five daughters of Mijares
and Delfina Nery, the defendants in this case, have an equal right to
that of the plaintiff as to the succession of their father as
acknowledged natural, daughters, and it is therefore neither just nor
proper to declare Consolacion, the plaintiff, the sole universal heir
of the deceased, or that she be allowed to take possession of all the
property of the latter to the prejudice of her sisters, Carmen,
Delfina, Engracia, Maria, and Luz.

The ratification of the decision appealed from is proper moreover
inasmuch as the defendants have exhibited a will and codicil which is
said to have been executed by the late Mijares, and the judge made no
finding as to the validity or invalidity of said documents for the
reasons stated in his decision.

It is therefore, in our opinion, proper to affirm the decision of
April 11, 1903, with the costs to the appellant, without prejudice to
such action as the court may take, at the instance of either of the
parties, as regards the will and codicil. Twenty days after the
filing of this decision let judgment be entered in conformity
therewith and let the case be remanded to the lower court. So

Arellano, C.J., Cooper, Willard, and McDonough, JJ.,
Mapa and Johnson, JJ., did not sit in
this case.

Date created: January 08, 2019


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