CATALINA OSMEÑA DE VALENCIA ET AL., PLAINTIFFS AND APPELLANTS, VS. EMILIA RODRIGUEZ ET AL., DEFENDANTS AND APPELLEES.

In an action instituted In the Court of First Instance of Cebu,
the plaintiffs prayed for an injunction restraining the defendants from using
the surname “Valencia”. The defendants filed a motion to dismiss, and this was
sustained by the lower court. Hence this appeal by the plaintiffs.

The plaintiffs allege, on the one hand, that they (except
Catalina Osmeña) are the legitimate children of the defendant Pio E. Valencia in
the latter’s lawful wedlock with plaintiff Catalina Osmeña; and, upon the other
hand, that the defendants, (except Emilia Rodriguez and Pio E. Valencia) are the
illegitimate children of Pio E. Valencia with his common-law-wife, defendant
Emilia Rodriguez. It Is accordingly contended by the plaintiffs that they alone
have the right to bear the surname “Valencia”, in accordance with article 114 of
the Civil Code which provides that legitimate children have the right to bear
the surname of the father. To complete their argument, the plaintiffs point out
that, under articles 139 and 845 of the Civil Code, illegitimate children (who
are not natural) are entitled only to support.

We concede that the plaintiffs may use the surname of their
father as a matter of right by reason of the mere fact that they are legitimate
children; but we cannot agree to the view that article 114 of the Civil Code,
without more, grants monopolistic proprietary control to legitimate children
over the surname of their father. In other words, said article has marked a
right of which legitimate children may not be deprived, but it cannot be
interpreted as a prohibition against the use by others of what may happen to be
the surname of their father. If plaintiff’s theory were correct, they can stop
countless inhabitants from bearing the surname “Valencia.”

The defendants’ case becomes the stronger when it is remembered
that, from all appearances, Pio E. Valencia (the father) acquiesces in the
adoption of his surname by the defendants. But even if he objects, the
defendants can still use the surname “Valencia,” in the absence of any law
granting exclusive ownership over a surname.

The appealed order is affirmed, and it is so ordered with costs
against the plaintiffs and appellants.

Moran, C.J., Perfecto, Bengzon, Padilla, Tuason,
Montemayor, and Reyes, JJ., concur.

FERIA, J.:

I concur in the result.

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CONCURRING AND DISSENTING

OZAETA, J.:

I concur in the affirmance of the order appealed from on the
following ground: It appears from paragraph 5 of the complaint that the
defendant Pio E. Valencia has allowed his illegitimate children by his
codefendant Emilia Rodriguez to bear his surname even after they had reached the
age of reason. From this allegation it may be inferred that since their birth
these illegitimate children have been given and have borne the surname of their
father with the latter’s consent. The plaintiffs predicate their case upon
articles 114, 139, and 845 of the Civil Code and Rule 103 of the Rules of Court.
Article 114 says that legitimate children shall have the right to bear the
surnames of their father and mother; and articles 139 and 845 say that
illegitimate children who have not the status of natural children shall be
entitled only to support. Rule 103 of the Rules of Court prescribes the
procedure for change of name. Upon the facts alleged in the complaint, these
statutory provisions are not sufficient, in my opinion, to entitle the
plaintiffs to the relief sought by their complaint. The mere fact that
legitimate children have the right to bear the surnames of their parents and
illegitimate children are entitled only to support, does not necessarily imply
that the father may not voluntarily permit his illegitimate children to bear his
surname. Rule 103 is not applicable because it is not alleged in the complaint
that the twelve defendants who are alleged to be illegitimate children of their
codefendant Pio E. Valencia have illegally changed their surname from some other
to that of Valencia. On the contrary we infer from the complaint that since
their birth they have always borne that surname with the knowledge and consent
of their putative father.

I dissent from so much of the majority opinion as may convey
the idea (1) that a person who claims to be the illegitimate child of another
may use or adopt the surname of the latter even against his will and without his
consent, and without authorization from the court; and (2) that any person is
free to use any surname he may have a fancy for without the authorization of the
court even though he may not have originally borne that surname. Concerning the
first idea, I am of the opinion that a person cannot adjudicate to himself a
status which adversely affects another without the latter’s consent or without
the intervention of the court. And as to the second idea, it is clear from Rule
103 that a person cannot adopt a new name, or use one other than that he has
originally borne, without complying with the requisites provided for in said
rule.