ADELAIDA TABOTABO, ET AL., PLAINTIFFS AND APPELLANTS, VS. AGUEDO TABOTABO, ET AL., DEFENDANTS AND APPELLEES.

Appeal from the order of the Court of First Instance of Cebu, dated February
13, 1956, granting a motion to dismiss complaint upon the grounds of lack of
cause of action, res judicata and prescription.

One Gaudencio Tabotabo, married to Rafaela Gallarde, died on September 2,
1908, leaving no issue with her. In his will executed on July 24, 1908, he
bequeathed his conjugal share to his wife, and naming her as executrix. In said
will, mention was made by the testator that he had a natural son named Vicente,
then married to Basilia Maxilon, begotten with Anastacia Aligato; and a daughter
named Juana, begotten with Candera Bagabaga.

In the course of the probate of the will (Special Proceedings No. 256), the
ten legitimate children of Vicente Tabotabo, now plaintiffs-appellants, surnamed
Tabotabo, who were then minors, filed a motion therein, asking that they be
declared sole heirs of the deceased by reason of their father’s having been
acknowledged in the will as natural son of the testator. After due hearing,
however, the court, in its order of September 10, 1909, denied their claim in
the following language:

“El Juzgado ha oido la mocion pendiente presentada por el curador
ad-litem de los menores hijos legitimos de Vicente Tabotabo, y despues de
haber considerado todos los antecedentes del caso cometidos por los abogados de
ambas partes, encuentra que el referido Vicente Tabotabo, no hasido
reconocido solemnemente ni por modo expreso ni tacito ni de ninguna manera
en ninguna de las clausulas del testamento de finado Gaudencio Tabotabo;
encuentra por lo contrario el Juzgado en dichas clausulas, especialmente en la
sexta, la voluntad firme y decidida del testador de no reconocer como hijo
suyo natural a Vicente Tabotabo. Por tanto, y a menos que los hijos de
Vicente Tabotabo representados por el Señor Franco que aquel ha sido reeonocido
en otra forma, se debe desaestimar y se desestima la mocion.”

No appeal was taken against this order, and in due time the probate
proceedings were declared closed and terminated on September 19, 1910. Since
then, the widow Rafaela Gallarde took possession of the properties through
Daniel Tabotabo, a nephew of the deceased.

A good many years later, herein plaintiffs-appellants and their father
allegedly renewed their claim to the inheritance by commencing Civil Case No.
7990, against Rafaela Gal. larde and Daniel Tabotabo, for partition, accounting
and recovery of fruits, but the record was lost during the last war, and the
same was never reconstituted.

After Rafaela’s death sometime in 1939, Daniel Tabotabo, together with the
heirs of Ismael Tabotabo, Fortunata Tabotabo and Serapia Tabotabo, distributed
the properties among themselves, as heirs of Rafaela. In 1948, Daniel Tabotabo
also died.

Thirteen years after the death of Vicente Tabotabo in August, 1941, his
children (appellants), led by Nicanor Tabotabo, initiated Special Proceedings
No. 1323-R in 1954, entitled “Intestate Estate of Gaudencio Tabotabo and Vicente
Tabotabo”, concealing the fact that the will of the elder Tabotabo had already
been probated. At the hearing of that petition, however, the Presiding Judge,
Hon. Clementino V. Diez, discovered that the will of Gaudencio Tabotabo had
already been probated as far back as 1910, in Special Proceedings No. 256, his
estate settled, and that Vicente Tabotabo had been disinherited. Hence, the
court dismissed the petition in its order of August 15, 1955 (Exhibit F), ruling
that there was no more estate of Gaudencio Tabotabo to be judicially settled and
that the proceedings then had become purposeless. Reconsideration of the order
was sought, but was denied, and no appeal taken.

Undaunted by their successive failures in the span of almost half a century,
these grandchildren of Gaudencio Tabotabo, lastly renewed their claim in
November, 1955, by filing the complaint the dismissal of which is now the
subject of this appeal. Their complaint, as amended, avers, in the first and
principal among six causes of action, that their father Vicente was a natural
son of Gaudencio, duly acknowledged in the latter’s will; that the testator left
no heirs except their father Vicente from whom they are entitled to inherit as
legitimate children; that before Gaudencio’s marriage to Rafaela, he acquired
properties, through inheritance or otherwise, consisting of forty-six parcels of
unregistered lands; that upon the death of Gaudencio, Rafaela took possession of
said properties through Daniel Tahotabo, a nephew of the deceased, first as
usufructuary of one-half of said properties; that they, as well as their father
Vicente demanded from Rafaela and Daniel the delivery of said properties plus
the fruits thereof, but that the latter refused so to do, only giving them,
however, their share in the products; that these demands were made from year to
year until they and their father Vicente were compelled to commence Civil Case
No. 7990, entitled Vicente Tabotabo, et al., vs. Rafaela Gallarde, et al., for
partition, accounting and recovery of fruits; that after Liberation, Daniel
continued to give them their share in the products until he died in 1948; that
after the death of Rafaela in 1939, Daniel with the heirs of Ismael, Fortunata
and Serapia, all surnamed Tabotabo, distributed the properties among themselves;
that after Daniel’s death in 1948, his widow and his children Aguedo, Josefina,
Alejandrino, Gloria and Gaudencio, all surnamed Tabotabo, took possession of the
13 parcels which corresponded to Daniel; and that it was only when Nicanor
Tabotabo was appointed special administrator of the estate of Gaudencio and
Vicente Tabotabo, Sp. No. 1323-R, that they knew that the properties were
declared, for taxation purposes, in the names of defendants-appellees.

It is evident from the foregoing that the case of plaintiffsappellants is
rested primarily upon the fact that their father Vicente had been acknowledged
as natural child in the will of Gaudencio. Their claim, therefore, must cling or
crumble in its entirety upon such acknowledgment. Thisibeing the case, it
becomes necessary to quote the pertinent portions of the will, which is worded
as follows:

“5. Que he tenido un hijo con Anastasia Aligato, ya difunta, cuyo nombre es
Vicente, casado actualmente con Basilia Maxilon, natural y vecina de este
municipio de Tuburan, Cebu, I. F., cuyo matrimonio cuenta ahora con various
hijos, entre hombres y hembras; y una hija con Candera Bagabaga Ilamada
Juana.

“6. Quo los referidos Vicente y Juana, caso de que reclames ser reconocidos
como hijos naturales y caso tambien de que consigan ser reconocidos por el
Juzgado como hijos mios, tales quedan por este testamento desheredados por los
fundamentos sequientes: 1. que en el ano 1898 varias veces Vicente en union
del marido de Juana (intento) matarme ltevando bolo en la cintura para efectuar
su intento, y tambien, porque Vicente y el marido de Juana que se liana Benito
de la Cruz me han injuriado gravemente de palabra.

“Y, ademas, porque Vicente en compama de Benito de la Cruz en el ano 1898 en
la Insurreccidn contra el Gobierno de Espafia entro en mi ganaderia de carabaos
en el sitio de Magaope, de la jurisdicci6n de este municipio de Tuburan, Cebu,
I. F., y sacaron por fuerza xnuchas cabezas de carabaos sin mi consentimiento,
contra mi voluntad, y los carabaos sacados por ellos importan Cinco Mil Pesos
segun mi calculo por haber sacado mas de ciento de eabezas de carabaos.

“Y cuando querian matarme llevaron ‘puniti’ para ser utilizados en el lugar o
sitio donde me encontraba.

“Ordeno y mando que los referidos hijos sean desheredados completamente de
mis bienes.”

As already stated at the outset, in interpreting the purpose and intent as
well as the meaning of the foregoing provisions, the Judge in his order of
September 10, 1909, found that “Vicente Tabotabo has not been solemnly
acknowledged in any of the provisions of the will, either expressly or
impliedly, or in any other manner;” on the contrary, His honor found that “it
was the steadfast and resolute will of the testator not to recognize Vicente
Tabotabo as his natural son.” It should be borne in mind that herein appellants
were the very ones, through their then guardian ad litem, who prompted
the probate court to rule, as it did, upon their motion that they be declared
sole heirs of the testator, based precisely upon “such “acknowledgment.” The
order became final in 1909 since no appeal was taken against it.

Appellants insist, however, that inasmuch as the express and formal
acknowledgment of their father Vicente was made in paragraph 5 of the will, this
provision alone, and no other, should be isolatedly and independently taken and
considered in this appeal, as the actual and factual acknowledgment, and that
the order of the trial court on September 10, 1909 ignoring the same, “was
rendered with a serious abuse of discretion, contrary to law, and public
policy.” The latter proposition came almost half a century too late and
irretrievably unavailable. This should have been invoked in a seasonable
appeal.

True, the law governing acknowledgment of natural children at the time the
will was executed was the Old Civil Code, providing that a voluntary
acknowledgment must be made, among other writings, in a will of the putative
parent (Art. 131, old Civ. Code), and this is selfexecuting without the
necessity of subsequent judicial sanction or confirmation, unlike in compulsory
acknowledgments which have to be pronounced by the courts upon petition of the
interested parties. In voluntary acknowledgments, however, the old Civil Code
equally provides that an adult natural child cannot be acknowledged without his
consent, or, if such child is a minor, he may contest such acknowledgment within
four years following his majority (Art. 133, old Civ. Code). The record shows
that Vicente Tabotabo had already ten children at the time and was, therefore,
well of age, but there is no showing nor inkling, however scanty, that he has
ever consented to such acknowledgment. On the contrary, in the recital made by
Judge Diez in Special Proceedings No. 1323-R, of the record appearing in Special
Proceedings No. 256, mention was made that Vicente Tabotabo even opposed the
probate of the will (Exh. F, p. 3).

A cursory perusal of paragraph 6 of the will above quoted, indicates
unmistakably that tte same is intimately connected with and related to paragraph
5 and both must be read together, as the latter merely serves as a premise to
the disinheritance provision of the former, so that, read and considered as a
whole, the testator never intended to acknowledge Vicente and Juana as his
natural children. On the contrary, his reference to them, incidentally at that,
was intended to forestall any attempt on their part to seek recognition or
acknowledgment.

It is clear, therefore, that Vicente Tabotabo had no successional rights to
the properties of Gaudencio Tabotabo for not being acknowledged by the latter;
consequently, herein plaintiffs-appellants as legitimate children of Vicente
Tabotabo cannot inherit from Gaudencio Tabotabo as they are complete strangers
to the latter. Hence, they have no cause of action against
defendants-appellees.

It is alleged that the question as to whether Vicente Tabotabo was a duly
acknowledged natural child of Gaudencio Tabotabo was not in issue in special
proceedings No. 256, and that the action is not barred by a prior judgment. The
record of the case, however, shows that the herein plaintiffs-appellants on
August 19, 1909, filed a motion in said Sp. Proc. No. 256, praying that they be
declared the only heirs cif Gaudencio, on the ground that their father Vicente,
was an acknowledged natural child of Gaudencio. In August 1909, Rafaela, as the
executrix of Gaudencio’s will, filed an opposition thereto. On September 10,
1909, the probate court issued the order earlier reproduced. It is, thus, seen
from the aforementioned pleading and the order of September 10, 1909, that the
question of the legal status of Vicente Tabotabo was directly in issue and was
squarely passed upon in Sp. Proc. No. 256, adversely to the herein appellants
Tabotabo. The defense of res adjudicata seems, therefore, to be well
taken (Vda. de Ursua vs. Pelayo, 107 Phil., 622).

From the complaint itself, it appears that upon the death of Gaudencio on
September 2, 1908, Daniel and Rafaela took possession of the properties
described in paragraph VI thereof, and that upon the death of Rafaela sometime
in 1939, Daniel and the heirs of Ismael, Fortunato and Serapia have distributed,
among themselves the same properties. The present complaint having been filed on
September 11, 1955, it becomes evident that the right, if any, of the plaintiffs
to recover the properties are long barred by the statute of limitations (Sees.
40 and 41, Code of Civ. Procedure; Tagarao vs. Garcia, 61 Phil., 5). The filing
of Civil Case No. 7990, before Rafaela’s death in 1939 and/or the so-called
extra judicial demands, made by plaintiffs for the delivery to them of the
possession of the lands in question, did not interrupt the prescriptive period
for the filing of the instant action (Osorio vs. Jongco, 98 Phil., 55; 51 Off.
Gaz. [No. 12], p. 6221; Peralta vs. Alipio, 97 Phil., 719).

The appeal, therefore, is dismissed, and the order appealed from is affirmed.
Costs against the appellants.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L.,
and Barrera, JJ., concur.