G.R. No. L-8606. December 27, 1956

Appeal from  two orders of the Court of First  Instance of Nueva  Ecija,  Hon. Luis N. de Leon, presiding, one for declaration  of heirs  and adjudicating the properties left by the above-named intestate in their favor and another denying a petition for probate in these proceedings. The case was  certified to Us by the Court of Appeals on the ground that only questions of law are involved in the appeal.

Bibiana Olivete died intestate on March 30,  1911, while a  resident  of  Lupao, Nueva Ecija.  She was survived by Rodrigo  Olivete Mata, her only child and issue, begotten with  Candido Mata  in August, 1910.  Candido Mata was married since the year  1898 to Basilisa Manaliksa, who died  in 1927.   Candido  Mata himself died in 1932. The other relatives of the intestate who survived her are her nephews Mariano Olivete and Antonio Olivete.  Mariano died in 1932 and left five children, namely, Marcela, Florencio, Monica,  Sixta and Melencio.  Antonio  is  also dead  and  survived  by his widow, Florencia Vda. de  Olivete and his children Carina,  Ponciano, Juliana and Maximo, all surnamed Olivete.

Rodrigo Olivete Mata, claims to be a recognized natural child of the intestate, as  a stipulation  was entered into by and between the parties that he is the only child  and issue  of Bibiana Olivete.  He introduced in  evidence an instrument  executed and sworn to before a notary public by  Bibiana Olivete, in which  she  declares that she recognizes Rodrigo Olivete to be her child, begotten by her and the child’s father, both being without any legal impediment  to marry, but this  instrument  was denied admission at the trial as incompetent and immaterial.   (See Exhibit A and t. s. n., p. 5)  But many witnesses for the petitioners  testified without  contradiction that Candido Mata was married  to one Basilisa  Manaliksa from 1898 and that the latter died in 1927.

On the basis of the above facts the  trial court held that the stipulation did not have the effect of an admission that Rodrigo Olivete was  a recognized natural child,  and that the instrument Exhibit A is not competent proof of recognition, as it is not the public  document required by Article 131  of the Civil Code.   On this appeal, counsel for Rodrigo Olivete contends that as the birth and identity of Rodrigo Olivete as child of the intestate is admitted, and as it is also admitted that the  decedent lived with him and sent him to school, the instrument Exhibit A would satisfy such  requirement.   Counsel for petitioners claim that the argument is incorrect, insisting that Exhibit A is not the public document demanded in Article 131 of the Civil Code of Spain.

The claims and contentions of counsel on either side are beside the decisive point in the controversy.  As Candido Mata, the father of Rodrigo Olivete, was a married man at the time Rodrigo was conceived, the latter is an adulterous child,  an illegitimate child who may  not be acknowledged legally by her  mother.   In order that an illegitimate child may be legally acknowledged, his parents must be free to  marry  at the  time  of his conception. (Article 119,  Civil Code of Spain.)   The conclusion of the trial court that Rodrigo Olivete Mata  was not legally recognized by  his mother is therefore correct, but  this is so on another legal ground.

A subordinate question  raised  on the  appeal is the refusal of  the trial court to consider,  in the same intestate proceedings,  a petition for the probate of an alleged will of the intestate, supposed to have been newly discovered, and the  trial court’s direction that separate proceedings  be instituted for such purpose.  In view of the fact that the decedent died  in  1911 (more  than  45 years ago) and the oppositor had agreed to the  stipulation  that Bibiano Olivete died  intestate, we find no error in the order of the trial court that  another independent proceedings be instituted for the probate of the supposed newly discovered will.

The  orders appealed from  are  affirmed,  with  costs against appellant.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.