G.R. No. 1362. April 15, 1904

This was an action brought by the plaintiff, Doña Rosa Llorente,
against the defendant, Ceferino Rodriguez, as administrator of the
estate of Jacinta Llorente, who died intestate on August 11, 1901.

It is alleged in the complaint that the deceased, Jacinta Llorente,
left the following heirs, to wit: Rosa Llorente, the plaintiff, her
legally recognized natural daughter; Mariano Rodriguez, Remedios
Orbeta, Flora Orbeta, Juan Orbeta, and Ceferino Rodriguez, legitimate
children; that the defendant, Ceferino Rodriguez, was the duly
qualified administrator of the estate; that all the debts against the
estate have been paid and that the property is now in a condition for
distribution, and prayed that a division and distribution might be made
and that the shares of the estate be assigned to each one entitled to
the same, in accordance with their respective interests.

A judgment was entered dismissing the petition of the plaintiff, and
the case has been appealed to this court in accordance with the
provisions of Chapter XLII of the Code of Civil Procedure relating to
appeals in special proceedings.

Many exceptions were taken on the trial of the case to the ruling of the court in excluding evidence offered by the plaintiff.

The ruling of the court in rejecting the evidence, as well as in the
final decision of the court, was based upon the view that the
recognition of a natural child must be made in accordance with the
provisions of article 131 of the Civil Code and that such recognition
can not be shown in any other manner than that prescribed in said
article. This article reads as follows:

“The recognition of a natural child shall be made in the record of birth, by will, or by any other public instrument”.

The evidence which was excluded tended to show a tacit recognition
by the acts of the mother, such as that Jacinta Llorente, the deceased,
had reared Rosa Llorente, and had educated her; and that Rosa Llorente
had, by the express authority of Jacinta Llorente, received baptism as
the natural child of the latter, in proof of which fact the baptismal
certificate, as well as the testimony of witnesses, was offered and was
excluded by the court; and proof was also made, by persons who were
present at the birth of Rosa Llorente, that she was the child of
Jacinta Llorente.

The evidence shows that Rosa Llorente was born on the 4th day of
September, 1872, and that the intestate, Jacinta Llorente, died August
11, 1901. The Civil Code was adopted on the 8th day of December, 1889.

The questions presented for determination are:

(1) Do the provisions of the Civil Code, to wit, article 131,
enacted subsequent to the birth of Rosa Llorente and subsequent to the
acts of recognition by Jacinta Llorente of Rosa Llorente as her natural
child, govern? If not, and—

(2) If the law in force in 1872 at the date of the birth of the
plaintiff is to be applied, had the mother the power under the law to
make legal recognition of a natural child; or was such right to make
legal recognition confined to the father?

(3) If the mother had a right to make such legal recognition, was
the proof excluded by the court sufficient, if admitted, to establish
legal recognition of a natural child?

In the transitory provisions of the Civil Code contained in article 1976, it is provided that—

“Changes introduced in the code to the injury of
rights acquired under preceding legislation, shall have no retroactive
effect. To apply the corresponding legislation in cases not expressly
specified in this code, the following rules shall be observed :

“1.
Rights arising under the legislation preceding this code, from acts
realized under its rules, shall be governed by such preceding
legislation, even when this code regulates them in another manner, or
does not recognize the same. But when such rights appear declared for
the first time in this code, they shall at once he effective, even when
the facts which originated them have been accomplished under the
preceding legislation, provided that they do not injure other acquired
rights having the same origin * * *.

“4. Actions and rights
arising before this code was in force and not exercised shall subsist
with the extension, and according to the terms acknowledged by the
preceding legislation, but shall be subject, in regard to the exercise,
duration, and proceedings for enforcing them, to the provisions of this
code. If the exercise of the right or of the action should depend on
official proceedings begun under prior legislation and they should be
different from those established in this code the persons interested
may choose the one or the other. * * * ”

If by the recognition as a natural child a right was vested in
plaintiff from acts realized under the legislation preceding the Civil
Code; that is, if such acts as were performed or such acts as occurred
gave her the status of legal recognition, then it is clear from the
provisions of the code that the legislation preceding the code must
govern.

The recognition of a natural child relates to the civil status of
such person. The legal recognition of a natural child confers certain
rights and advantages, and when once made the child has a certain civil
status, to wit, that of affiliation.

Under the Civil Code the right to this status may be enforced by
suit; and under the civil law the child could not be deprived of this
status when once created.

Escriche says:

“The father being free to recognize or not to
recognize his natural child, can not, although he may be a minor,
revoke the recognition which he has legally made. This recognition in
effect is not properly an act of liberality, but a declaration of a
fact to which the law attaches certain advantages; but this declaration
of paternity once made, the child acquires the status of affiliation,
of which he can no longer be deprived.” (3 Escriche, p. 59.)

To the same effect is a decision of the supreme court of Spain of the 8th of November, 1893 (74 Jurisprudence Civil,
p. 301). It is held in this decision that where a party acquired the
condition of legitimation, the defects of birth are thereby effaced;
that the party acquired the juridical capacity in succession of
hereditary rights, and that the provisions of the Civil Code, as
contained in the transient provisions, expressly reserved the rights
thus acquired under the previous law.

We reach the conclusion that the law in force in the year 1872, the
date of the birth of the plaintiff, with reference to the recognition
of natural children, is to govern in this case and not the provisions
contained in articles 129 and 131 of the Civil Code now in force.

The law in force at the date of the birth of the plaintiff was Law
11 of Toro, by the provisions of which a child is said to be natural
when, at the time at which it was born or was conceived, the father and
the mother could be married without dispensation, provided that the
father recognized it as his child, notwithstanding the mother may not
have lived in the house.

The question remains to be determined whether the mother had the
power, according to the law of Toro, to make recognition of a natural
child; or, was the right to make legal recognition confined to the
father? This law gives the right expressly to the father but is silent
as to the mother.

The reason why this difference exists, as stated by the
commentators, is that the fact of the birth of the child was as to the
mother a sufficient certainty of the matter, certainty being the main
point to be considered.

Under the Roman law this certainty was insured by reason of the
relationship that existed between the parents, to wit, concubinage.
This relation existed where the parents resided permanently together.
Concubinage constituted a legal status, and, as the paternity of the
children in such state was certain, the child was regarded as having
known parents as well as a known family and the legal status of a
natural child was given the children without any formal, express, or
tacit recognition. All other children, born out of matrimony, were
regarded as illegitimate and not possessing the status of a natural
child.

Afterwards, under the laws of the partidas a similar relation was
recognized in Spain to that of concubinage under the Roman law. This
relation was called that of barragania. To constitute this
relation it was not necessary, as under the Roman law, that the parents
should reside continuously with each other. The only requirement was
that the parties should publicly appear before witnesses and the woman
should receive the man under this relation. The children thus born to
the parties were regarded as natural children because the publicity of
the agreement and its authenticity were considered as sufficient
guaranty of the certainty of the issue. There was no necessity under
the laws of the partidas, in cases where this relation existed, that
there should be a recognition of the children. They acquired the status
of natural children without express or tacit recognition. Afterwards
when public sentiment no longer countenanced the condition known as barragania,
and this relation which was regarded as sufficient to give certainty to
the issue no longer existed, it became necessary that there should be
some provision made by law for the recognition of natural children, and
as a consequence Law 11 of Toro was enacted.

Under the laws of Toro numerous decisions have been made by the
supreme court of Spain, in which it is invariably held that the
recognition of a natural child need not be expressly made, but may be
tacit; that recognition is open to such proof as would be sufficient to
prove any other fact in an ordinary suit.

Under these decisions the testimony offered by the plaintiff and
rejected by the Court of First Instance was admissible to show a tacit
recognition, if such recognition had been made by the father.

It can not very well be understood why in a case where recognition
is made by the mother, it should not be equally valid and efficacious
as where it is made by the father. The fact that additional certainty
is furnished by proof of birth of the child should give additional
support to the status of a natural child when a recognition is made by
the mother, rather than destroy the right upon the part of the mother
to make recognition of a natural child.

The majority of the court have reached the conclusion that the mere
proof of the birth of a natural child is sufficient to give it the
status of a recognized natural child such as is mentioned in article
840 of the Civil Code. Others are of the opinion that there should be
proof of recognition by the mother, either expressly or tacitly made,
in order to bring the case within the provisions of article 840 of the
Civil Code. To comply with these views the judgment of the lower court
should be reversed and the proof offered by the plaintiff and excluded
by the Court of First Instance, tending to prove tacit or express
recognition by Jacinta Llorente of the plaintiff, Rosa Llorente, should
be received in evidence. In addition to this, proof should be made as
to the birth of the plaintiff by those who were present and who
testified to this fact on the previous trial.

In the event that judgment shall be given for the plaintiff, on
another trial, and it should be held that the plaintiff is entitled to
participate in the distribution of the estate of Jacinta Llorente, we
are of the opinion that the provisions contained in article 840 of the
Civil Code—the law in force at the date of the death of Jacinta
Llorente—should govern in such distribution.

While the status of the plaintiff as a natural child must be
determined by the law in force at the date of the birth of Rosa
Llorente, the laAvs relating to the distribution of an estate in force
at the date of the death of intestate, should govern in the
distribution. See Mijares vs. Nery ^[1] recently decided by this court, and the decision of the supreme court of Spain of date June 24, 1897.

The judgment of the lower court is reversed and the cause is
remanded for a new trial. Cost of the appeal is adjudged against the
defendant as administrator of the estate of Jacinta Llorente.

Arellano, C. J., Torres, Mapa, McDonough, and Johnson, JJ., concur.

Judgment reversed and new trial ordered.

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^[1] Page 195, supra.