THE SPOUSES BERNABE AFRICA vs. CALTEX (PHIL.), INC.

[16 SCRA 448, G.R. No. L-12986, March 31, 1966]

Facts:
The action is for damages for the fire in a Caltex gasoline station in Manila causing damage to
petitioner's house, personal property and effects therein.

Certain reports on the fire prepared by the Manila Police Departments and Fire Departments
and by a certain Cap. Tinio of AFP were attempted to be presented by the prosecution. For one,
Captain Tinio's report reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the
same subject.

Other statements were given by an employee at the gas station where the fire occurred; the
driver of the tank truck from which gasoline was being transferred at that time to the
underground tank of the station; and by the respondent who could not give any reason as to the
origin of the fire. Further,some sources of the information stated in the reports were not
identified.

The CA denied such reports for being double hearsay.Thus, this petition.

Issue:
If the public officer or other person had sufficient knowledge of the facts stated in the reports,
which must have been acquired by him through official information, thus such reports do not
constitute hearsay, thus admissible?

Held:
NO.The reports do not constitute an exception to the hearsay rule as the facts stated therein
were not acquired by the reporting officers through official information, not having been given by
the informants pursuant to any duty to do so.

To qualify their statements as "official information" acquired by the officers who prepared the
reports, the persons who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for record.

G.R. No. L-9105 November 22, 1915

In re ESTATE OF APOLINIA REMIGIO.

GORGONIA REMIGIO, petitioner-appellants,
vs.
SANTIAGO ORTIGA, EDUARDO ORTIGA, and ALFONSO ORTIGA, respondents-
appellees.

Chicote and Miranda and Gabriel La O for appellant.

Rohde and Wright and Jose M.a de Marcaida for appellees.
ARAULLO, J.:

Apolinia Remigio y Capati, widow of Pablo Ortiga Chan Chioc, died, in Manila, and the will
executed by her on August 12, 1911, was duly probated in the Court of First Instance of the said
city. On January 7, 1913, Gorgonia Remigio y Peña came into said court and filed a petition in
which she stated that she was the person that in the fifteenth paragraph of said will was instituted
as the universal heir of all the property, rights and action of the testatrix that had not been
specially devised; she asked the court to order that said remainder of all the property belonging
to the estate, after all the debts and obligations, donations, legacies, expenses of administration,
and other charges were paid in accordance with the will, be delivered to her by the administrator,
as required by law.

Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga also entered their appearances and prayed
that such part of Apolonia Remigio's estate as pertained to them, as the sole children and forced
heirs of said decedent, be distributed among them.

Evidence was introduced by both parties, the case was heard, and on March 24, 1913, said Court
of First Instance of Manila issued an order in which (on the grounds that the petitioners Santiago
Ortiga, Eduardo Ortiga, and Alfonso Ortiga were the legitimate, acknowledged children of
Apolinia Remigio, born of her, and as such entitled to share in her estate as forced heirs, no
reason being given in the will why they should be disinherited) he directed that the said
decedent's estate should be partitioned and distributed in the following manner; To Santiago
Ortiga, two-ninths; to Eduardo Ortiga, two-ninths; to Alfonso Ortiga also two-ninths; and the
third part which remained, pro rata among the legatees named in the last will and testaments of
the said Apolinia Remigio, deceased.

Said legatees, on being notified of the aforementioned order, appealed therefrom to the Supreme
Court; the appeal was admitted upon the filing of a bond for P500, and, after forwarding the
proper transcript of the evidence, the parties herein filed their respective briefs, in one of which
petitioner Gorgonia Remegio has assigned various errors. She claims the lower court erred in
admitting certain evidence adduced by respondents; in making the findings and the conclusions
drawn by said court upon said evidence; and in declaring and finding that respondents are the
forced heirs of the deceased Apolinia Remigio and entitled to a two-thirds share in her estate.

In the will executed, as aforesaid, by Apolinia Remigio on August 12, 1911, the following clause
appear:

First. I declared that I was married in first and only wedlock to D. Pablo Ortiga Chan
Chioc, a native of China, a resident of Manila and a Christian, with whom I contracted a
canonical marriage.

Second. I declare that from my marriage with said Pablo Ortiga I have had two children,
a boy and a girl, who were baptized in the parish church of Binondo, Manila, with the
names of Candido and Doretea; that they died a short while after birth — all of which
facts are shown in the respective baptismal and burial entries recorded in the archives of
the parish of Binondo, Manila. I further declare that at the present time I have neither
ascendents nor descendents of any kind, and although in the will executed by my husband
on April 7, 1902, and subsequently probated, he recorded that the parties named
Santiago, Eduardo, and Alfonso were issue of his marriage with me, the testatrix, the
truth is that that statement is not true, as may be proved by the means which I leave in the
hands of the persons whom I hereby institute as my heir.

Third. I declare to be my property all that which is specified in the instrument and
agreements made by me with my husband's alleged legitimate children named Santiago
Mora Ortiga, Alfonso Ortiga, and Eduardo Ortiga, relative to the partition and
distribution of property on the occasion of the probate proceedings in the matter of the
estate of my deceased husband D. Pablo Ortiga, although I have disposed of some
property and have acquired other, note of which I shall leave with my heir.

Fourth. I designate, appoint, and institute as my testamentary executors, administrators of

the property found after my death, and executors of this will of mine, in the first place, D.
Julian La O, and in the second place, D. Jose de Jesus y Pilapil, either of whom must
discharge the duties of his office in the absence of the other, and unless my heir should
request of the proper authorities that said gentlemen give bond for the faithful discharge
of the duties of their office, relieve them from all bond and confer upon them all the
powers granted by the laws in force; but I beg, recommend, and order them not to bring
any action whatever against my husband's children, with reference to the property that
was improperly awarded to them by deceased husband, but if my husband's said children,
or any of them should attach this will or any of the clauses or provisions thereof, then and
in that case my testamentary executors shall proceed in accordance with law, for them
and in that case I hereby retire, withdraw and annul the request, recommendation and
order above mentioned.

xxx xxx xxx

Fifteenth. As to the residue of all my property, rights and actions of whatever kind they
may be, I institute as my sole and universal heir my niece Doña Gorgonia Remigio y
Peña, in order that, as the exclusive owner of my said property, rights and actions,
without other limitations than those I have hereinabove imposed, she may hold, possess
and enjoy them and exercise all other ownership rights thereto pertaining.

But I recommend to my said heir and order her not to impeach the filiation claimed by
Santiago Mora Ortiga, Alfonso Ortiga, and Eduardo Ortiga, and not to bring any action
whatever against them or their heirs by reason of the property and businesses they
improperly received out of the estate of my deceased husband Don Pablo Ortiga Chan
Chioc for, out of respect for his memory, I have desired, do continually desire, and shall
always desire that there be peace; notwithstanding, my heir as well as my testamentary
executors shall be free to take any legal proceedings with regard thereto, should those
alleged children, or any of them, attempt to disturb or contest this will, or in any other
 way whatsoever initiate any action or contest by reason of this will or on account of my
property.

Notwithstanding the clear and positive statement made by Apolinia Remegio y Capati in the
second, fourth and fifteenth clauses of her will above transcribed, to the effect that the
respondents Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga are not the issue of her
marriage with Pablo Ortiga Chan Chioc, deceased, these said children have endeavored to prove
the contrary for the purpose of participating, as her forced heirs, in the estate left by said
testatrix.

The first proof presented by respondents for this purpose consisted of the will (Exhibit A)
executed by the deceased Pablo Ortiga on April 7, 1902, and probated on March 8, 1906, and the
petition for such probate, presented by his widow Apolinia Remigio and his son Santiago Ortiga
y Remigio, as stated in the respective application (Exhibit B), in which it was also stated that
said deceased at his death had left said will in which he instituted as his sole and universal heirs
his children Santiago, Eduardo, and Alfonso.

In said will of the deceased Pablo Ortiga, the following clauses appear:

xxx xxx xxx

Third. I declare that after several years' residence in these Islands from the time I first
arrived in them, they being then governed by the late Spanish Government, I contracted
marriage in facia ecclesie with Doña Apolinia Remigio y Capati, my present wife, who,
like myself, brought to our marriage no property worthy of mention, but by force of
constancy, labor, fatigue and painful economy we have been able to acquire the property
we now possess and which I shall hereinafter specifically mention.

Fourth. I declare that up to the present time there have been born to me of my marriage
(three) children named Santiago, Eduardo, and Alfonso, the first being of legal age and
the last (two) minors.

xxx xxx xxx

Sixth. Earnestly desiring to outline a scheme or to commence the partition of my

property, thus facilitating this labor, I wish and it is my will that, as a part of the
community property pertaining to my wife Doña Apolinia Remigio y Capati, and to this
she consents, there be awarded to her all the property specified in Nos. 1 to 6, inclusive,
of paragraph 2 of this my will, and which we have obtained by her own desire, for,
although the total value of this property, to wit, eighty-eight thousand pesos, is not one-
half of the amount of the total property we possess (amounting to three hundred and
seventy-one thousand pesos), yet she will in no wise suffer any detriment from the
natural risks of commercial affairs; on the other hand, the landed property is more stable
and secure, aside from the fact that no one except her children or descendants are
lawfully entitled to succeed her in her property rights . . . .
Further evidence presented by respondents was the instrument of partition of the property of said
decedent, Pablo Ortiga, together with the agreement setting forth the bases for this partition
(Exhibit D) filed with the court in case No. 4312, proceedings relative to said decedent's estate.
This document was dated July 27, 1907, and was signed by Apolinia Remigio herself and by
Eduardo Ortiga, Santiago Ortiga, and the guardian of Alfonso Ortiga.

The following paragraphs are contained in the document just mentioned:

I. SUCCESSION OF THE DECEASED.

Don Pablo Ortiga Chan Chioc, a native of the town of Chuan Chiu, province of
Chincang, Chinese Empire, sixty-one years of age, the son of parents now deceased,
engaged in business in these Philippine Islands, married to Doña Apolinia Remigio and
domiciled in this capital of Manila and the district of Binondo thereof, Calle Dasmariñas,
No. 11, died, leaving a will, executed on April 7, 1902, and a widow and three children
named Santiago, Eduardo, and Alfonso, the first two children of legal age and the last
one, a minor, the only persons up to the present time interested in the partition of the
estate of said decedent.

II. PERSONALITY OF THE INTERESTED PARTIES.

As the widowed spouse, according to the sixth clause of the will, Doña Apolinia Remigio
y Capati, widow, of age and a property owner.

As instituted heirs, according to the seventh clause, the aforementioned Santiago,

Eduardo, and Alfonso, of age the first two and a minor the last one, the first of them
being 33 years old, the second 23, and the last, 19.

xxx xxx xxx

VI. AGREEMENT AS TO THE BASES FOR THE PARTITION.

The persons interested in this partition, on the one hand, Doña Apolinia Remigio y
Capati, for her one-half of the community property, and on the hand, Don Santiago, Don
Eduardo and Don Alfonso, all surnamed Ortiga, the first (of the three persons just
mentioned) in his own behalf and in representation as testamentary guardian of the last-
mentioned, who is a minor, agree that these three last named children, in view of the
great sacrifice which the first-named, their most beloved mother Doña Apolinia Remigio
y Capati, has made for them, of her watchfulness and care for their literary and religious
education, and of her generous unselfishness in behalf of the three brothers, in sacrificing
the greater part of her community property to enlarge the part of the estate awarded to
each of them by their father (may he be in heaven) and in contenting herself with only
P88, 000 of the P185,000 which belongs to her, voluntarily and freely bind themselves,
jointly and severally: 1. To recognize and consider as being of the sale exclusive
ownership of their said mother Doña Apolinia Remigio, and that there be awarded to her
 as a part of her one-half of community property, the three estates which she acquired by
her sole and private initiative, management and industry, etc.

The respondents also presented the document Exhibit E, which reads as follows:

I, Don Jose Bustamante, Presbyter of the Holy Cathedral Church, and in charge of the
Binondo Parish, (hereby) certify:

That in the baptismal registry No. 42 of this parish, on page 294 thereof, is an entry
which reads as follow:

"On October 13, 1883, I, the undersigned ecclesiastical administrator and parish
priest of Binondo, Province of Manila, set forth that the Very Reverend Father,
Candido Garcia Valles, with my permission solemnly baptized and annointed
with the holy oils and chrism in this church under my charge, a boy born five days
before who was given the name of Eduardo Ortiga Chan Chioc, the legitimate
issue of the lawful marriage of Don Pablo Ortiga Chan Chioc, a Christian
Chinaman, with Doña Apolonia Remigio, a Chinese mestiza, residents of Calle de
Teatro Viejo; his godfather was D. Silvano Aquino Zacarias, married to this
district, who was apprised of his spiritual relationship and of the duties he
contracted. In witness whereof I affix my signature. — Fray Meliton Moreno."

This copy agrees with its original; which I certify — Parochial house of Binondo, January 14,
1913.

(Sgd.) JOSE BUSTAMANTE,

Presbyter.

The respondents, Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga, presented four witnesses
to prove that they were legitimate children of the married couple Pablo Ortiga and Apolinia
Remigio, and that they enjoyed consideration as such.

One of them, Nemesio Corpus, 63 years of age, the senior sacristan of the Binondo Church from
January, 1879 to 1898, and charged with making out the birth certificates in said church, testified
that he knew Pablo Ortiga and Apolinia Remigio during that period and that he was in their
house on a certain occasion for the purpose of preparing the papers for the baptism of a boy; that
Apolinia herself, while in bed, spoke to him and, on his asking her on what date she wished the
child to be baptized, told him October 13, 1813, (sic); that the child was baptized on that date
and his name was Eduardo Ortiga Chan Chioc; and that he subsequently knew the latter. On the
question being put to this witness: "Did Apolinia tell you anything about whose child that was?"
he replied: "She did not; I went there only as a friend and visitor, and I asked her when the child
was to be baptized and she told me."

Another witness was Aniceta Novenario. She testified that she knew Pablo Ortiga and Apolinia
Remigio when she went to live with them in the year 1880. On being asked: "Did they have any
persons in the house whom they treated as their children?" she replied: "None." Asked whether
she has understood the foregoing question, she answered: "Yes, sir." and, continuing her
testimony, made the following replies:

Q. Were there any persons whom they treated as and called such? — A. Their children
were there.

Q. Who were those children? — A. Santiago and Eduardo.

Q. When was Eduardo born? — A. On October 9, 1883.

Q. Were you there when Eduardo was born? — A. Yes, sir.

Q. How long did you remain afterwards? — A. A long while; my husband went to China
and left me there with them.

Q. Do you know Eduardo now? — A. Yes, sir.

Q. Have you known him since a short time after his birth?. — A. Yes, sir.

Q. Did Pablo and Apolonia Remigio always call him their son and treat his as such?

MIRANDA: I object to the question as being irrelevant and immaterial.

The Court: Objection overruled.

(Exception).

A. Yes, sir; they used to call him their son.

Julia Reyes, another of the respondents' witness, testified that she became acquainted with Pablo
Ortiga and Apolonia Remigio while she lived in their house; that she did not remember the year,
but she was there as one of the family; that there was then in the family a boy named Santiago;
that when she went to live in the said house, Capitana Apolinia was pregnant; that witness did
not know whether afterwards there was another boy in the family, save the one named Eduardo;
and that witness knew the latter from the time of his birth until he became of age because she
took care of him. Finally, on this witness being asked: "Did Pablo and Apolonia Remigio always
call Eduardo their son and treat him as such?, she replied: "Yes, sir. Appellant's counsel,
however, objected to this question as being suggestive, irrelevant and immaterial, and excepted
to its admission.

Finally, N.T. Hashim testified that he knew Pablo Ortiga and his wife Apolinia Remigio about 20
years ago; that he constantly visited their house, quite as if it were his own, and that he used to
live near them, first on Calle Salazar, and afterwards on Calle Gandara, in front of their house.
He further testified as follows:
 Q. Do you know Santiago, Eduardo, and Alfonso Ortiga? — A. I know the whole family.

Q. Do you know how those three, Santiago, Eduardo, and Alfonso Ortiga were treated in
the house of Pablo Ortiga?

MIRANDA: Objected to as immaterial, incompetent, and irrelevant.

The COURT: Objection overruled.

(Exception).

A. Yes, sir; the first I knew of them, I and my family and all my children, they always
spoke of them as "my son so and so," and "father and mother," and especially I knew the
mother better than the father as he used to go to China. I remember one of the last time I
had anything to do with them, one of the children, I do not remember now whether it was
Eduardo or Alfonso, was held in the customhouse, and the old woman came to me and
asked me to take him out to the customhouse, and asked me: "How is it the American
hold them? Tell them they are my children, born here in the Islands."

Q. MIRANDA: Which son was that, Eduardo or Alfonso? — A. I do not remember

which. I went down to the immigration office and explained to the officer there and he
says: "You must bring the baptismal paper and let the mother come here and make
affidavit that he is her son born in the Philippine Islands," and I went back to the house
and told her, and at the time she was sick and she said: "I won't go down to the
customhouse," and I went back to the customhouse and they said that if she could make
out a power of attorney for some one to act for her, or an order, and she was surprised
when I told her to make the power of attorney, and then she says: "Santiago is my son; he
can go," and then she made out the paper before the notary, I do not remember who, and I
took it to the customhouse and got the boy out.

Q. Do you know, Mr. Hashim, the treatment that Pablo Ortiga and Apolonia gave these
three, that is, Santiago, Eduardo and Alfonso Ortiga, in the presence of other people, as to
whether they were their children or not?

MIRANDA: Objected to as immaterial, incompetent and irrelevant.

The COURT: Objection overruled.

(Exception).

A. Well, it is always in my presence, and everybody's presence, "My son, my son." If she
had anything inside of her I do not know.

That is all.

Cross-examination by MIRANDA:
 Q. What document is that Doña Apolinia gave to you? — A. If I am not mistaken she
declared: "It is my son Santiago; I give him full power to represent me in the
customhouse."

Q. Before whom was that executed? — A. I do not remember, because I just wanted to
take the children out of the customhouse.

Q. Who was that in the customhouse; Santiago? — A. No, sir. Santiago was given the
power to go down to the customhouse instead of his mother.

From the testimony introduced by petitioner to rebut that presented by respondents, it appears, in
the first place, that a girl named Vicentica Lopez, a native of Bigaa, Province of Bulacan, live
with the married couple Pablo Ortiga Chan Chioc and Apolinia Remigio in their house on Calle
Dasmariñas in the district of Binondo. Such was the testimony of the following witnesses:
Severina San Jose, who was a servant of said spouses and began to serve them, as she herself
testified, when she was still very young; a brother of Apolinia herself, named Arcadio Remigio,
and her niece Marcela Remigio who had lived in the home of said married couple ever since she
was weaned, as she also testified, it having been Apolonia herself who took care of her until she
was 20 years old; Paz Lim, who also knew Vicentica in the house, and Maria de la Cruz, an old
servant of the house where she had lived with said spouses Pablo Ortiga and Apolonia Remigio
and had taken care of the only two children this couple had, Candido and Dorotea, both of whom
has since died. This same witness also testified that Vicentica Lopez was a godchild of
Apolonia's by confirmation and 12 years old when she went to live in said house.

This same evidence discloses that Marcela Remigio testified that Vicentica Lopez gave birth to
Eduardo Ortiga in the house on Calle Dasmariñas, and that she knew it because she was then
listening at the door of the room in which Vicentica was. The other witness, Maria de la Cruz, on
being asked whether she knew who was Eduardo's mother replied: "Vicentica," and added on
being questioned as whether she was present when Eduardo was born; "Yes, sir; in fact I saw
him ... . In fact the midwife was in the room and I had to assist the midwife; on this account I
saw that child when he was born." This same witness, Marcela Remigio, further testified that
Vicentica Lopez also gave birth, after Eduardo, to a child named Fidel, and after this one, to four
others named Alfonso, Pablito, Pacita, and Romaning. The witness Severina San Jose testified
that she saw Vicentica gave birth to Alfonso in said house on Called Dasmariñas; that Vicentica
herself nursed said child after his birth, which fact witness knew because it was she who took
care of the child; that Alfonso called Vicentica "mamma," and the latter considered him as her
own child and treated him as such; that sometimes when Vicentica would entrust this child to
witness, she would tell the latter "to take good care of her child;" that Eduardo also considered
Vicentica as his mother; that when Alfonso was also considered Vicentica as his mother; that
when Alfonso was a little more than three feet tall he was taken to China, witness then
accompanying him as far as the customhouse; that after Alfonso's birth there was in the house
another child of Vicentica's whose name was Pablito, who was born in Paco and was a son of the
said Vicentica, which latter fact witness knew because she was living in the house; and that said
child was born in Paco notwithstanding that Vicentica was living on Called Dasmariñas, because
"Captain Pablo and Apolonia had a disagreement and for this reason Captain Pablo took
Vicentica to Paco." This testimony accords with that of the other witness Arcadio Remigio in
which the latter testified that Pablo Ortiga has a house in Paco, which was in his wife's name, but
belonged to this witness; that Vicentica Lopez was pregnant when they took her to said house, at
which time Eduardo and Santiago were still very young; that Vicentica bore three children in
said house and that Pablito was the name of the first of them.

Finally, said evidence shows, by the testimony of Maria de la Cruz, an old house-servant of the
married couple Pablo Ortiga and Apolonia Remigio, that this witness went with these latter to
China and on their return to these Islands they brought with them a boy three years old, whom
said spouses had bought in China; that this child was the one who was afterwards called Santiago
Ortiga, and was pointed out by the witness during the hearing; that witness had the money in her
hand when said child was bought, and that it was taken from her to pay the child's father and
mother. This testimony is related to that given by Severina San Jose and Arcadio Remigio, both
of whom testified that they knew that Santiago was bought in China, the witness Arcadio
Remigio stating that he knew this to be a fact because his sister Apolonia and his brother-in-law
told him so when they arrived from China, and that said child was then about three years of age.

In connection with the testimony of these same witnesses we have, on the one hand, Exhibit 5, a
certificate issued by the Second Assistant Executive Secretary on December 27, 1911, of a copy
taken from the Gaceta de Manila of October 21, 1875, in which there appears an official
announcement of the 18th of the same month of October, by the Secretaria del Gobierno
General de Filipinas, making known, as was required at that time, that Don Pablo Ortiga Chan
Chioc, ex gobernadorcillo de sangleyes, has applied for a passport to return to his country in
company with his wife Doña Apolinia Remigio and his native servant Maria de la Cruz, that is
the witness of this name who testified in this case; and, on the other hand, the certificate Exhibit
3, issued on June 10, 1902, by the acting parish priest of the pueblo of San Cruz, a suburb of
Manila, which certificate recites that on page 231 of the baptismal register kept in the archives of
his parish, there was an entry which showed that on July 25, 1877, the presbyter D. Manuel
Clemente solemnly baptized and annointed with the holy oils in said church of Santa Cruz, a
male child born on December 18, 1873, who was given the name of Santiago Mora Ortiga and
was the son of pagan parents, natives of Chincang of the Chinese Empire.

It likewise appears from the will executed by Pablo Ortiga Chan Chioc on May 23, 1883, a copy
of which, as Exhibit 4, was presented by petitioner, that the testator Pablo Ortiga declared that he
was lawfully married to Doña Apolonia Remigio and as issue of his marriage with her, had had
two children named Candido and Doretea, who died in infancy. This particular agrees with the
statements made by Apolonia Remigio in her will of Pablo Ortiga aforementioned, among the
several legacies made therein there appears one in favor of his nephew named Santiago Chan
Bung Quing, of the value of P2,750, and another legacy of P1,000 in favor of Vicentica Lopez,
before mentioned.

Finally, when the Exhibits 1 and 2 were shown to the witnesses Arcadio Remigio, Marcela
Remigio and Paz Lim, — the latter being another of petitioner's witnesses who testified that she
had known Vicentica Lopez in Apolonia Remigio's house on Calle Dasmariñas, — they stated
that said exhibits were photographs of said Vicentica Lopez. It also appears from petitioner's
Exhibit 6 that on January 4, 1903, Santiago Mora, mentioned in the corresponding church record
which constitutes said exhibit, as Santiago Mora Ortiga Chan Quin, a Christian Chinaman and
native of Chincang, Chinese Empire, contracted as second marriage; and from the Exhibit No. 7,
that on October 2, 1890, in the Binondo Church, a male child was baptized who was given the
name of Pablo Dalmacio Ortiga Chan Chioc, a legitimate son begotten in lawful wedlock by D.
Pablo Ortiga Chan Chioc with Doña Apolonia Remigio, residents of Calle Dasmariñas of the
said district of Binondo.

As may be seen from the foregoing, it is not exactly true, as stated in the order appealed from,
that there was introduced in evidence much testimony by persons who had been servants of the
family of Pablo Ortiga and Apolonia Remigio and who individually proved that petitioners were
always treated by the late Apolonia Remigio as children by Pablo Ortiga, and were always
acknowledged by her as such.

The only witnesses who testified for petitioners or respondents with respect to the
aforementioned particulars, were Aniceta Novenario and Julia Reyes, who for some time live in
the house of those spouses, and N. T. Hashim, a friend of the latter's and for some time a
neighbor of theirs.

The first of these witnesses, after saying that there was no one in that house whom said spouses
treated as their son, and on being again questioned as to whether she had understood the question
to which she had made that reply, answered affirmatively and said that "their children were
there;" and on being asked who were those children, she replied: "Santiago and Eduardo," with
regard to the latter of whom she said that Apolonia Remigio and Pablo called him their son.

The second of the three above mentioned witnesses, Julia Reyes, only said that there was in the
family a boy whose name was Santiago, and that she did not know whether there was another
child in it, except Eduardo, whom she had known from the time of his birth until he became of
age, because it was she who had taken care of him. To the question put to her with respect to
whether Apolonia Remigio and Pablo Ortiga always called Eduardo a child of theirs and always
treated him as such, she also answered affirmatively.

The third witness, N.T. Hashim, testified quite confusedly in regard to those details. He virtually
said in substance that in his presence and in that of other persons, Pablo Ortiga and Apolonia
Remigio employed the words "my son, my son," in referring to Santiago, Eduardo and Alfonso;
but this witness added, moreover, that "if she (Apolonia) has anything inside of her I do not
know." This same witness, Hashim, testified that, on account of Eduardo or Alfonso being
detained in the customhouse, Apolonia Remigio sought witness' assistance in order to get him
out; that it was then that this woman said to him: "How is it that the American hold him? Tell
him they are my children, born here in the Islands;" and that, as Apolonia then did not wish to go
to the customhouse and had to execute a power of attorney in behalf of some one to represent
her, she said: "Santiago is my son; he can go ... . It is my son Santiago; I give him full power to
represent me in the customhouse."

Neither is the exact truth stated in the following language of the order appealed from:

Witnesses who testified that they lived in the house as servants said that they were
present and saw Apolonia Remigio give birth to the petitioner Eduardo, and while they
 were still servants in the house, she gave birth to the petitioner Alfonso at the house of
Pablo Ortiga in Paco — they having also a home on Calle Dasmariñas — though they,
the witnesses, did not witness the birth, but were told by Pablo Ortiga when it occurred.

The only witnesses presented by petitioners or respondents at the hearing of this incident in the
distribution of the estate of Apolonia Remigio were, as aforesaid, Nemesio Corpus, Aniceta
Novenario, Julia Reyes and N.T. Hashim. None of these witnesses said that he or she was present
when Apolonia Remigio gave birth to the petitioner Eduardo, nor said anything about being
present at that of the other petitioner Alfonso, nor that Pablo Ortiga told them a single word with
regard to Apolonia's giving birth to Alfonso.

Nemesio Corpus merely testified, as said before, that while he was at those spouse's house on a
certain occasion for the purpose of preparing the papers for the baptism of a male child,
Apolonia, who was in bed, spoke to him about the matter and in reply to a question told him that
she wanted the child baptized on the 13th of October, 1813, (he meant 1883), and that in fact he
was baptized on that date and given the name of Eduardo Ortiga Chan Chioc. But this same
witness testified that Apolonia Remigio herself said nothing to him with respect to whose child
that was.

Aniceta Novenario also testified, besides what has already been quoted with the reference to her
testimony, that Eduardo was born on October 9, 1883; that she was in the house of those spouses
when Eduardo was born and remained there a long time, for her husband went to China and she
remained in the house with said spouses; and that, then, at the time of the trial, she knew
Eduardo and had known him ever since as short while after his birth. But she did not say that she
saw any woman give birth to Eduardo, that is, she did not say of whom he was born.

The other witness, Julian Reyes, also in addition to what has been quoted hereinbefore with
reference to her testimony, limited herself to saying that when, in what year she did not
remember, she was living in the house of said spouses, in which she was treated as one of the
family, there was a male child therein called Santiago; that when she went to live in that house,
Capitana (the captain's wife) Apolonia was pregnant; that she did not know whether there was
afterwards another child of the family, except Eduardo; and that she had known the latter from
the time of his birth until he became of age because she took care of him. But this witnessed did
not say that Apolonia Remigio, as a result of that pregnancy, gave birth to Eduardo.

Finally, the witness Hashim did not say one word with reference to the birth of any of the
respondents.

Neither was there presented in evidence Alfonso's baptismal certificate to which reference is
made in the order appealed from and in which, according to the order, it is recited that Alfonso is
an adopted son of Pablo Ortiga and Apolonia Remigio; and, finally, in connection with the fact
of Apolonia Remigio's having presented an affidavit in the immigration division of the
customhouse, to which document reference is also made in the order appealed from the evidence
introduced at the hearing in these proceedings only shows the testimony by N.T. Hashim, as
aforesaid, and from that testimony it does not appear that the affidavit was presented on January
5, 1910, as stated in the order.
In connection with the inaccuracies noted, as we have said, in the order appealed from, it must be
taken into account that the Honorable A. S. Crossfield, judge of the Court of First Instance of
Manila, who issued it, said therein as follows:

When making the order admitting the will of Apolonia Remigio to probate, I was inclined
to believe from the evidence then before me, which is also a part of the evidence before
me at this hearing, that probably the petitioners were children of Pablo Ortiga, but not of
Apolonia Remigio, the deceased; but after again examining the whole of the former
evidence and taking into consideration the evidence recently presented, my belief is
somewhat changed, and I must conclude that the petitioners Santiago Ortiga, Eduardo
Ortiga, and Alfonso Ortiga are the legally recognized children of the deceased Apolonia
Remigio, born of her, and as such entitled to participate in her estate as forced heirs.

After a careful examination of the copy of the transcript of the evidence submitted to us by the
appeal raised in these special proceedings, it does not appear that in the hearing on these
proceedings, that is, of the incidental issue on the distribution of the estate of the late Apolonia
Remigio, as stated by the Honorable Judge Crossfield, the evidence previously taken at the
hearing on the probate of the will of said decedent, which was had before this same judge, was
made a part thereof, with the exception of the testimony given at said hearing by the witness for
the petitioner or appellant Gorgonia Remigio, named Maria de la Cruz, by virtue of an agreement
and stipulation made by the parties, shown on page 11 of said printed copy of the transcript of
the evidence. Furthermore, at the request of the respondents' counsel and by agreement of
petitioner's, as shown on page 5 of said transcript, there was included in this latter the oral and
the documentary evidence of the respondents, the first of which consists, as may be seen on page
18 to 77 of the transcript, of the testimony given by the witnesses previously mentioned,
Nemesio Corpus, N.T., Hashim, Aniceta Novenario and Julia Reyes, and the second, of the
Exhibits A, B, C, D, and E, which we have also mentioned in referring to the evidence by
respondents.

It is clear, therefore, as alleged by petitioner's counsel, that the lower court erred in the order
appealed from, by holding, as we have seen, that all the evidence given at the hearing of the
probate proceedings on the will of Apolonia Remigio was introduced at the hearing of the
proceedings for partition of the estate of said decedent, and likewise by drawing conclusions
based on evidence which respondents did not present at the hearing of this incidental issue,
whereby the trial court was led to make the inaccuracies hereinbefore mentioned.

Pursuant to the rules laid down by the supreme court of Spain, in several of its decisions, among
them, those of June 28, 1895, November 7, 1896, and July 5, 1906, with respect to paternity, —
which decisions are by analogy likewise applicable to a question of maternity, — the constant
possession of the status of child of a given person is proven by the continuation of acts which
hold out a person as enjoying the uninterrupted relation of child of another given person; by acts
which show clearly the will of the father or of his family, as the case may be, to have as his child
the person who claims that obligatory acknowledgment; and by acts which may be of such a
nature that, while at the same time they reveal the conviction of paternity, they show the
ostensible will, in the social and other relations of life, to have and treat the child as such, as this,
not accidentally, by continually, because, on such an hypothesis, according to the last of the
decisions above cited, these acts have the same value as an explicit acknowledgment.

In the case at bar, Aniceta Novenario and Julia Reyes, witnesses presented by respondents to
testify in regard to the condition or status respondents enjoyed in the home of the spouses Pablo
Ortiga and Apolonia Remigio, as children of this latter, as already seen in our reference to their
respective testimony, did not testify to any act whatever performed by Apolonia Remigio which
showed the relation between her and respondents to be that of mother and child, or that
necessarily revealed the will of Apolonia Remigio to have them as children. These witnesses
restricted themselves to answering affirmatively the suggestive question which were put to them
by respondents' counsel and which were objected to by petitioner's, as to whether Apolonia
Remigio and Pablo Ortiga always treated Eduardo as their child and called him such.

The other witness, N.T. Hashim, besides vaguely answering another question similar to that put
to the witnesses just above mentioned, by saying: "It is always in my presence, and everybody's
presence, 'my son, my son;' if she (Apolonia) had anything inside of her, I do not know," referred
to a single instance in which, casually, that is, on an occasion when Apolonia Remigio was
obliged to obtain the release of either Eduardo or Alfonso then detained in the customhouse, she
told Hashim, so he testified, to the Americans that they were her children, and that Santiago, who
could go in her stead, was also her child. However, as deduced from Hashim's own testimony, all
this was for the purpose of obtaining the release of the detained person and in order that he might
be permitted to enter the Islands; it was a single, fortuitous act which not sufficient force and
value of constitute proof of the possession by those persons of the status of children of Apolonia
Remigio.

In the will executed by Pablo Ortiga Chan Chioc on April 7, 1902 (Exhibit A), no statement
whatever was made by Apolonia Remigio to the effect that Santiago, Eduardo and Alfonso
Ortiga were her children. The declaration in clause 3 of the will, that up to that time the testator
had had by his marriage (he undoubtedly referred to that mentioned in the same clause) to
Apolonia Remigio three children named Santiago, Eduardo and Alfonso, was made solely by the
testator himself, Pablo Ortiga.

In the petition (Exhibit B) presented to the court by Apolonia Remigio as the widow of Ortiga,
and by Santiago Ortiga y Remigio, for the probate of said will, in which petition these two
parties state that their deceased husband and father, respectively, died on January 26, 1906, there
is not a single phrase that contains an express acknowledgment on the part of Apolonia Remigio
that said Santiago, Eduardo, and Alfonso were her children, nor is there any such
acknowledgment in the agreement of bases for the partition, nor in the instrument of partition of
the estate of the deceased Pablo Ortiga Chan Chioc, (Exhibit D), and, although in this agreement
we find words "his beloved mother D.a Apolonia Remigio y Capati," "his said mother D.a
Apolonia Remigio," and other references of the same kind, none of them, as may be understood,
were recorded in that document as having been uttered by Apolonia Remigio herself, but by the
respondents, Santiago, Eduardo, and Alfonso, with whom Apolonia Remigio made that
agreement of bases and the aforesaid partition.
From these same documents, however, it is deduced, and proved by the other evidence, that the
named Santiago, Eduardo, and Alfonso lived from infancy in the home of the spouses Pablo
Ortiga and Apolonia Remigio, although Eduardo and Alfonso were for some time absent in
China; that the said Santiago, Eduardo, and Alfonso were considered as members of the family
of Pablo Ortiga and Apolonia Remigio, and since infancy continued to use Pablo Ortiga's
surnamed with the knowledge and consent of Apolonia Remigio; that the latter assented to the
declaration made by her husband Pablo Ortiga in clause 3 of his said will executed on April 7,
1902, to the effect that up to then he had had, by his marriage with her, three children named
Santiago, Eduardo, and Alfonso; that she joined with Santiago Ortiga in the petition presented to
the court in order that, by means of the proper probate proceedings, the said will be given due
force and effect; and finally, that she also joined with the same party, Santiago, and the other two
respondents, Eduardo and Alfonso (she, as the widow of the deceased Pablo Ortiga, and they as
the latter's children as stated in the aforecited clause 3 of the said will) in the distribution and
partition of the estate of said deceased, Pablo Ortiga, she receiving the part that pertained to her
as community property of the conjugal partnership between herself and the decedent, and the
other three the property to which they were entitled as their heirs instituted by the said Pablo
Ortiga in his will.

But as against all these acts of Apolonia Remigio, some of them positive and others of tolerance,
and in open opposition to them, is the clear, express, and definite declaration made by her some
time prior to her death, in the second clause of her will executed on August 12, 1911, transcribed
at the beginning of this decision. In that clause she declared that out of her marriage to Pablo
Ortiga she had had two children, a boy and a girl, named Candido and Dorotea, who died soon
after birth, and that then, that is, on the date of the execution of the will, she had no ascendent or
descendent of any kind, and that, although in the will executed by her husband on April 7, 1902,
it was recorded that the parties named Santiago, Eduardo and Alfonso were his children had in
his marriage to her, the testatrix, such statement was not true, as could be proven by the means
which she left in the hand of the person whom she instituted in her will as her heir.

As said will of Apolonia Remigio was probated by the Court of First Instance of Manila, it is, of
course, a proven fact that the testatrix was sane and had the full and complete use of her faculties
when she made that declaration which is an express and definite rectification of the
acknowledgment that might be implied by those acts and the statements which, in connection
with them, Apolonia Remigio had previously made, whereby she gave it to be understood that
she acknowledged Santiago, Eduardo, and Alfonso Ortiga as her children — a rectification
intended, as stated by the testatrix herself, to set forth the truth, not to deprive these three parties
of the property which had already been awarded to them as the lawful heirs of the deceased
Pablo Ortiga, as shown by the fact of her having, in the fourth clause of her will, requested,
recommended and ordered that her testamentary executors should not bring any action whatever
against her husband's children by reason of the property which was unduly awarded to the latter
by their appearing to be her said deceased husband's legitimate children — a recommendation
and order which she also made to heir and legatees, repeating, in the fifteenth clause of her will,
to the first, that she was not to question the alleged filiation of Santiago Mora Ortiga, Alfonso
Ortiga, and Eduardo Ortiga, nor bring any action whatever against them or their heirs on account
of the property and businesses which they had unduly received out of the estate of Pablo Ortiga
Chan Chioc, for, out of respect for the latter's memory, she had always desired then and would
always desire that there be peace. But she also stated in the same will that, should these three
persons or any of them institute any legal proceedings to attack her will or should they
commence any legal action, either on account of the will or of her property, the request,
recommendation and command aforementioned were forthwith withdrawn and annulled and her
heir and testamentary executors should have liberty of action in that respect.

Two questions, then, have been raised by that rectification and by the appeal interposed in these
proceedings by Apolonia Remigio's heir.

The first one is whether, in view of these acts of Apolonia Remigio and granted that they must be
considered as an acknowledgment on her part that the respondents Santiago, Eduardo, and
Alfonso Ortiga are her children, such rectification should be admitted.

It is true that the supreme court of Spain, in its decision of January 5, 1900 (quoted by
respondent's counsel in their brief), in deciding an appeal in cessation interposed by a woman
who sought the annulment of an order by which another woman was declared to be the heir of a
certain title of nobility that had belonged to appellant's deceased husband, which other woman
had been acknowledged by their natural daughter who was afterwards legitimized by the
subsequent marriage of her parents — an acknowledgment which was subsequently denied by
the appellant by rectifying the one she had previously made — declared in one of its findings
that:

The acknowledgment of a child as a natural child, by the presumed parents, who prior or
subsequent to such acknowledgment contract marriage, vest the child with the character
and consideration of a legitimate child for all the legal effects that appertain to legitimate
children, and, on the assumption of such as acknowledgment, there is no provision, either
in our ancient or our modern laws, which authorizes any arbitrary rectification of such an
acknowledgment, to the child's prejudice.

But in is undeniable that there is no provision in any of the laws now in force which prohibits the
father or mother who recognized a person as their natural or their legitimate child, to make, by
any of the means prescribed by law, such a rectification, that is, to deny to said person the
previously acknowledged status or quality of child. In order that a rectification of this nature may
be made, it is not necessary that there be a legal provision to authorize it, for the reason that the
law cannot foresee the cases where, by reasons of the ineluctable dictates of conscience of the
necessity of safeguarding some right, such a rectification may be necessary and just.

This the supreme court of Spain, in the decision just cited, recognized in holding, also in the
finding which follows the one hereinabove transcribed, that:

When such a status exists, the investigation of the paternity of a person who has a child
that enjoys such status does not appear to be allowed, unless it is pursued in order clearly
to show that the legitimatized child does not reunite the relative conditions that the law
requires in order that he may be so legitimatized, or has not the absolute condition of his
not being the child of the person who acknowledged him, or because such person could
not have begotten him, or because the child is the child of a third person, for otherwise, in
 view of the mystery surrounding paternity and the alleged presumption of its certainty,
established in law by the ground of the acknowledgment or the possession of the status of
acknowledged child, against such presumption no other can lawfully prevail, however
strong it may appear.

And this is precisely the point in question in this case. Apolonia Remigio, widow of Pablo
Ortiga, during the life of her husband consented that the three respondents, Santiago, Eduardo,
and Alfonso, should bear her husband's surname and live with her and her husband under the
same roof; and while there she considered them and treated them as members of the family, and
even as her children. When they were instituted the heirs of her husband, Pablo Ortiga, in the
will executed by the latter on April 7, 1902, and when this testator declared therein that the said
Santiago, Eduardo, and Alfonso were his children had in his marriage with the petitioner, the
latter made no opposition to that statement and consented that they, as such alleged children of
the deceased Pablo Ortiga, should share in the latter's estate, in accordance with the mandates of
his will, and she joined with them in the partition of the estate left by the said deceased, out of
which she received for herself, by reason of said partition and the previous agreement she had
with said alleged children, the part of the estate that pertained to her as community property. This
property would certainly have fallen to her and she could not have been deprived of it, even
though the deceased Pablo Ortiga had not made in his will the statement aforementioned that the
said Santiago, Eduardo, and Alfonso were legitimate children of his had by her, and although
they had not been his instituted heirs.

But when Apolonia Remigio saw her end approaching, she did not wish the truth to remain
hidden. Consequently, in the second clause of her will of the date of August 12, 191, she
declared that the statement made by her husband in his will of April 7, 1902, to the effect that the
parties named Santiago, Eduardo, and Alfonso were the issue of his marriage to her, was not
true, and she further declared that this could be proven and that she left the means for this
purpose in the hands of the persons whom she instituted her heir in her will, and in this same
instrument, on changing her testimony executor and her heirs not to bring any action whatever
against the three children above named, nor against their heirs, by reason of the property and
businesses which they had unduly received out of the estate left by her husband, Pablo Ortiga,
she explained the reason of the silence she had maintained by saying that out of respect to the
memory of her husband she had always desired, did then desire and would always desire that
there be peace — an explanation which clearly conveys the understanding that while her husband
Pablo Ortiga was living, she, out of respect and deference to him and in order not to disturb the
peace of the family, consented that the aforenamed Santiago, Eduardo, and Alfonso should be
considered by her husband as his children and should bear his surname, and she herself
considered and treated them as such.

The proofs place by Apolonia Remigio before her death in the hands of her heir, the petitioner
Gorgonia Remigio, as she offered to do in her will, have attained the purpose for which they
were intended, to wit, of fully proving not of that Santiago, Eduardo, and Alfonso did not possess
the absolute condition of being Apolonia Remigio's children, but still further that they were the
children of another certain, determinate woman.
So that the rectification made by Apolonia Remigio in her said will, of the acknowledgment that
might be implied form the acts, previously mentioned, some of them positive and others of
tolerance, performed by her in respect to the said Santiago, Eduardo, and Alfonso should be
allowed, in accordance with said decision of the supreme court of Spain, of January 5, 1900
quoted by respondents' counsel.

Said rectification being allowed, the second and only question left to be decide is whether it was
proven in the course of these proceedings that Santiago, Eduardo, and Alfonso Ortiga are really
children of the testatrix Apolonia Remigio, or, what amounts to the same thing, whether they
issued from her womb.

The means established by law to oblige the mother to acknowledge the natural child, that is, the
child who claims really to be her own, are the same as those prescribed to oblige the father to
make such acknowledgment. (Civ. Code, arts. 135, 136.) But, with respect to the mother, another
means is provided in paragraph 2 of the second of the articles cited, and is applicable "when the
fact of the birth and the identity of the child are duly proven." The reasons why the law provides
this last means of proof with respect to the mother is, undoubtedly, because the mother is always
known, and, as a French jurist has said, "in regard to the investigation of maternity, it is not a
question of penetrating nature's mysteries; childbirth and the identity of the child are two positive
facts which can be proven."

As the respondents Santiago, Eduardo, and Alfonso Ortiga, in their petition of January 8, 1913,
made the claim which gave rise to these proceedings, that, out of the estate of Apolonia Remigio,
there should be alloted to them the part thereof that pertained to them as the said decedent's sole
children and forced heirs, as they so stated in that petition; and as they then knew that the said
Apolonia Remigio had denied them that capacity, in her will of August 12, 1911, and that, for
this reason, they had not been instituted therein as said decedent's heirs, therefore, they should
have fully proven that they were her children, availing themselves with this object in view of all
the evidence allowed by law for the purpose, especially that above indicated, the fact of the
childbirth by Apolonia Remigio and that of their having been born of her womb in the respective
childbirth, which would have been the clearest and best evidence of the filiation claimed by them
in their said petition made for the purpose stated.

However, after a careful examination of the evidence adduced by respondents none is found, as
we have seen before, that refers specially and categorically to the fact of any of them having
been born of the womb of Apolonia Remigio, or in other wombs, that she gave birth to any of
them. Nemesio Corpus, in relating the fact that, while he was at the house of Apolonia Remigio
and her husband, Pablo Ortiga, the former spoke to him of the baptism of "the child," and that
the child was baptized on October 12, 1813 (he must have meant 1883), did not say that the child
that was baptized on that date, that is, Eduardo Ortiga Chan Chioc, was brought to the world by
Apolonia Remigio; on the contrary, this witness stated that Apolonia did not tell him whose child
it was. Aniceta Novenario, who, as she stated, was in the house of the married couple Ortiga and
Remigio when Eduardo was born, did not say of what woman he was born, did not say that
Apolonia Remigio gave birth to him. Nor did Julia Reyes, who went so far as to affirm that when
she went to live in the house of Capitana Apolonia the latter was pregnant, say, either who it was
that Apolonia brought into the world as a result of her pregnancy, nor that the child who was
born on that occasion was Eduardo, whom this witness said she had known since his birth. And it
is all the more remarkable that these two last mentioned witnesses should have said nothing with
respect to the specific fact of Apolonia Remigio's having, on the occasion to which they refer,
given birth to Eduardo or to some other of the respondents, especially since, as these same
witnesses testified, they were both living in Apolonia Remigio's house and could have seen with
their own eyes Apolonia Remigio's childbirth and could have been present thereat, had it actually
taken place, and, by means of their testimony they could have identified the person who was
born in that alleged childbirth.

As these are the only witnesses presented by respondents in their endeavor to prove that the
parties named Santiago, Eduardo, and Alfonso were really children of Apolonia Remigio, that is,
were born of her womb; and as they submitted no proof with respect to said details, other than
that herebefore mentioned, they have thereby shown themselves unable to prove those facts, so
important for a successful issue of their claim.

On the other hand, petitioner has satisfactorily proven in the first place, that Santiago Ortiga,
when he was three years old, was bought in China by the spouses Pablo Ortiga and Apolonia
Remigio in the year 1875 when these latter were in that country whither they had gone with their
native servant Maria de la Cruz in October of the same year, as shown by the certificate Exhibit
5; and the money to pay the child's father and mother passed through this servant's hands, as she
herself testified. This child was then brought to Manila by said spouses and lived in their home.
Also those who had dealing with Ortiga and Remigio and lived in the same house knew that this
child had been bought in China. It cannot be gainsaid that such was the origin of Santiago Ortiga,
inasmuch as, on his being baptized in the Santa Cruz Church of this city, on July 25, 1877, that is
two year after he had been bought in China, he was given the name Santiago Mora Ortiga, and
entry was made in the respective register (Exhibit 3) that he was the son of pagan parents, natives
of Chincang, China. Finally, that he was not the son of Pablo Ortiga and Apolonia Remigio was
virtually corroborated by the fact that, on Pablo Ortiga's executing the first will on May 23, 1883
(Exhibit 4), when he already had in his house the child who was baptized under the name above
mentioned, he declared therein that he was then lawfully married to Doña Apolonia Remigio and
had had during their marriage two children, Candido and Dorotea, who died in infancy, but he
made no mention of the said Santiago as being of his children. However, he left a legacy of
P2,750 to his nephew named Santiago Chan Bung Quin, that is, to Santiago Ortiga, as appears
from the certificate Exhibit 6, in which, after setting forth that he contracted a second marriage
on January 4, 1903, he appears under the name Santiago Mora Ortiga Chan Quin, a Chinese
Christian, native of Chincang, China.

In the second place, it had also been prove by the petitioner that the parties named Eduardo
Ortiga and Alfonso Ortiga were born of a young woman named Vicentica Lopez who lived in the
very same house on Calle Dasmariñas of the spouses Pablo Ortiga and Apolonia Remigio, as the
step-daughter, that she was, of this latter. The testimony of Severina San Jose, a servant of said
spouses, whom she began to serve when she was still very young and in whose house she lived,
is very clear and conclusive; so is also that of Marcela Remigio, a niece of Apolonia, who also
from infancy lived in the same house, in company with her aunt. The same may be said of the
testimony of Maria de la Cruz, an old servant of the house. The two last mentioned witnesses
testified that they saw Vicentica Lopez give birth to Eduardo in said house, and the first witness
also said that she saw Vicentica Lopez give birth to Alfonso in that house. These three witnesses
explained in a satisfactorily manner how these fact had come to their knowledge, that is, why
they knew what they testified to, and there is no reason whatever to doubt their veracity, for they
were in a situation to have learned of the intimate family affairs of Pablo Ortiga and Apolonia
Remigio, as they lived with this couple in the same house where Vicentica Lopez also lived,
according to the statements made by these witnesses and by two others named Arcadio Remigio
and Paz Lim, the first of whom is a brother of Apolonia.

The witnesses Aniceta Novenario and Julia Reyes, presented by respondents, denied, however,
that they had seen and known Vicentica Lopez in the house of Calle Dasmariñas, and the second
of them likewise denied that she had known Arcadio and Marcela Remigio previous to the time
she testified, and that the latter was living in that house when this witness took care of the child
Eduardo. These tow witnesses also stated, when shown the photographs Exhibits 1 and 2, that
they did not know the woman portrayed therein.lawph!1.net

But, to determine the credibility of said witnesses, it must be taken into account that, as Arcadio
Remigio and Marcela Remigio were, respectively, a brother and a niece of Apolonia Remigio, it
is incredible that they should not have gone to the latter's house, and that, if Julia Reyes lived in
the same house, she should not have seen them there, and that these same two witnesses should
not have known Vicentica Lopez, whose existence and presence in said house was testified to by
all the petitioner's witnesses; and, in the second place, besides the testimony of these latter, we
have the statement made by the petitioner's witness, Paz Lim, who lived in the house of Apolonia
Remigio on Calle Dasmariñas, to the effect that she there knew Aniceta Novenario and Vicentica
Lopez and saw that these latter treated each other on intimate terms; and in the third place, one of
respondents own witnesses, N.T. Hashim, testified that the aforementioned Arcadio Remigio,
Marcela Remigio and Paz Lim were always in Apolonia Remigio's house, and that they ate and
slept there. This statement, having been made by one of respondent's witnesses, is in itself
sufficient to show what little credence can be given to the testimony of their tow witnesses,
Aniceta Novenario and Julia Reyes.

As, according to rules of law repeatedly affirmed, a baptismal certificate attest the fact which
gave rise to its execution, as well as the date of the latter, that is, it is an attestation of the
administration of the sacrament on the date mentioned therein, but not of the veracity of the
statements therein contained with respect to the relationship of the person baptized, the one
exhibited by respondents (Exhibit E), relative to Eduardo Ortiga, does not prove that the latter is
a legitimate son of Apolonia Ortiga and Pablo Ortiga, as recorded in said document, and so much
the less credence should be placed in said certificate, with respect to this particular matter of the
relationship of Eduardo with Pablo Ortiga and Apolonia Remigio, since it is also set forth in the
baptismal certificate, petitioner's Exhibit 7, that Pablo Dalmacio Ortiga is the legitimate son of
these same spouses Pablo Ortiga and Apolonia Remigio, whereas it was proven that the child
known under that name, that is, Pablito, was also one of the children born of Vicentica Lopez
while she lived in the home of those spouses on Calle Dasmariñas, and this child was born, not in
that house, but, on account of some trouble Pablo Ortiga then had with his wife, Apolonia
Remigio, in another house which Pablo had in Paco.
In conclusion, respondents have not proved that they are the children of Apolonia Remigio, or, in
other words, that they were born of her womb; the presumption that they were, based upon her
various acts, some of them positive and others of tolerance, on the assumption that such acts
constituted an acknowledgment of such filiation, has been completely negatived by the evidence
adduced by petitioner that one of the respondents, Santiago Ortiga, was bought in China by the
spouses Pablo Ortiga and Apolonia Remigio, he being the son of pagan parents, natives of
Chincang, China, and that the other two appellees, Eduardo Ortiga and Alfonso Ortiga, were
born of a woman other than said Apolonia Remigio. The presumed acknowledgment, therefore,
has no force or value for the object sought by the respondents in these proceedings.

By reason of the foregoing, we revoke the order appealed from and declared that the parties
named Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga are not entitled to share in the estate
of the deceased Apolonia Remigio, as requested by them in their petition of January 8, 1913. No
special findings is made with respect to the costs in this instance. So ordered.

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

Carson and Trent, JJ., dissent.

G.R. No. L-22378 June 29, 1968

CLEMENTE FORTUS, ET AL., petitioners,

vs.
ROSARIO NOVERO and JULIA T. FORTUS, respondents.

Ozaeta, Gibbs and Ozaeta for petitioners.

Suanes and Gualberto for respondents.

DIZON, J.:

Appeal by certiorari from the decision of the Court of Appeals in G.R. L-22378, affirming the
one rendered by the Court of First Instance of Lipa City in its Special Proceedings No. 610.

The proceedings for the summary settlement of the intestate estate of the late Ciriaca Angelo,
who died sometime in the year 1930 in the municipality of Rosario, province of Batangas, were
commenced by Rosario Novero who claimed to be an illegitimate child of the deceased
Victorino Fortus (Ciriaca's grandson), born on April 4, 1922 out of Victorino's alleged illicit
relations with Patricia Novero. Her claim was opposed, on the one hand, by Julia T. Fortus, the
surviving widow of Victorino, and on the other, by Clemente, Zoilo, Faustina, Catalino, Pio,
Demetria, Francisca and Roman, all surnamed Fortus, hereinafter referred to as the Fortuses,
who claimed to be half brothers and sisters of said deceased. After the required notice by
publication and subsequent trial the aforesaid Court of First Instance rendered judgment as
follows:

WHEREFORE, judgment is hereby rendered dismissing the claims of petitioner and the
Fortus brothers and sisters to succeed to the estate left by Victorino Fortus, and declaring
Julia T. Fortus as the sole heir and the absolute owner of all the properties left by
 Victorino Fortus. Julia T. Fortus is hereby ordered to reimburse Felicidad Peña Gonzales
the amount of P1,303.04. No pronouncement as to cost is hereby made.

Rosario Novero and the Fortuses appealed to the Court of Appeals who in due time rendered the
appealed decision. As the first did not appeal, said decision must now be deemed final, as far as
she is concerned. The Fortuses, however, interposed the present appeal by certiorari and urge Us
to reverse the appealed decision claiming that the Court of Appeals committed the following
errors:

The trial court erred in finding that petitioners' parents, Fermin Fortus and Jacoba Aguil,
were not legally married:

(1) By holding that the legal presumption of marriage was overcome by Exhibit 5 and by
the testimony of Clemente Barbosa;

(2) By construing the certification Exhibit 5 without reference to Act No. 3022 and the
explanatory testimony of David de Jesus, Jr. of the Bureau of Public Libraries;

(3) By holding that Exhibits 2, 4, 9-B and 9-C did not constitute a proof of marriage
between Fermin Fortus and Tacoba Aguil, much less a proof of the legitimacy of the
oppositors Fortuses; and

(4) By not applying the law and applicable decisions of the Supreme Court to the
undisputed facts of the case.

The above assignment of errors make it obvious that the only issue involved in this appeal is one
of fact: whether or not Fermin Fortus and Jacoba Aguil were legally married. Indeed, at page 8
(last paragraph) of their brief the Fortuses openly admit that "the sole question in this case" is
"whether petitioners' mother, Jacoba Aguil, was legally married to Fermin Fortus". The Court of
Appeals' (1) holding that the legal presumption of marriage was overcome by Exhibit 5 and by
the testimony of Clemente Barbosa"; (2) said court's "construing the certification Exhibit 5
without reference to Act No. 3022 and the explanatory testimony of David de Jesus, Jr., of the
Bureau of Public Libraries"; (3) its "Holding that Exhibits 2, 4, 9-B and 9-C did not constitute a
proof of marriage between Fermin Fortus and Jacoba Aguil, much less a proof of the legitimacy
of the oppositors Fortuses" involve nothing more than evaluation of evidence and are but the
reasons that led said court to declare as a fact that Fermin and Jacoba were never married. The
evaluation made by the Court of all or part of the evidence of record; its finding of fact — that
the persons just named were never legally married —, even if wrong, may not now be reviewed
by Us, the present being an appeal by certiorari. We have held in a long line of cases that in
appeals of this nature We pass upon and decide only questions of law (Cabrera vs. Lopez, 84
Phil. 834-5; Pacheco vs. Arro, 85 Phil. 505-15; Celesto vs. People, G.R. L-3935, Dec. 21, 1951;
Traders, etc. vs. Golangco G.R. L-6442, Sept. 21, 1954). In the recent case of Jesusa Lacson
Vda. de Arroyo vs. Beaterio etc., we held:

According to the decision of the Court of Appeals, the lone assignment of error submitted
by the appellants in their brief argued "for the sufficiency of plaintiffs-appellants'
evidence as a fair and reasonable basis for restinga finding that the donation in question is
inofficious." It is clear, therefore, that the only issue submitted to said court, and by it
decided, was purely one of fact.

In this connection it is a matter removed from dispute that We can review decisions of the
Court of Appeals only on errors of law, its findings of fact being conclusive.

A question of law has been declared as one not calling for the examination of the
probative value of the evidence presented by the parties (Goduco vs. Court of Appeals, et
al., (G.R. No. L-17647, February 28, 1964; Air France etc. vs. Carrascoso, et al., G.R.
No. L-21438, September 28, 1966). Moran's Comments on the subject (Rules of Court,
Volume II, 1963 Edition, p. 412) are to the effect that "For a question to be one of law, it
must involve no examination of the probative value of the evidence presented by the
litigants or any of them

In a case similar to the one at bar (Lim vs. Calaguas, G.R. No. L-2031, May 30, 1949, 40
O.G., 11 Supp. 247, 83 Phil, 796) We held:

Our review should be confined to the facts and circumstances found by the Court
of Appeals. And we agree that such facts and circumstances in this case do not
sustain the theory of the appellant. Indeed it is seriously to be doubted whether we
could reverse the conclusion of the appellate court to the effect that those facts
and circumstances are not "enough evidence" to show clearly and beyond doubt
that the parties intended the contract to be a mortgage instead of a conditional
conveyance. That conclusion is obviously ONE OF FACT, not a bit different from
the verdict of a jury in a murder trial that the circumstantial evidence presented by
the prosecution has proved, or has not proved that the accused had killed the
deceased.

In disputes of this nature, the pivotal inquiry is: Do the circumstances show
beyond doubt that the parties made a contract different from the express terms of
the document they signed? Is the evidence clear, convincing and satisfactory that
the deal was a mortgage instead of a sale with pacto de retro? (Cuyugan v.
Santos, 34 Phil. 100; Tolentino v. Gonzales, 50 Phil. 558). That query necessarily
invites calibration of the whole "evidence", considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding circumstances, their
relation to each other and to the whole and the probabilities of the situation.
Consequently the question must be deemed factual for the Appeals' Court to
solve.

In the United States where questions of law are for the jury, it is held that if the
question whether a given transaction amounts to a conditional sale or mere
mortgage depends upon written instruments alone, it is a question for the court;
but if extraneous evidence is required or received for the purpose of ascertaining
the real intention of the parties, the question is for the jury (41 C.J. 361 citing
many cases, particularly Bogk v. Gasset, 149 U.S. 17, Howard v. Kopperl, 74
 Tex. 194; 5 SW 627 and Kinnert v. Strong, 103 Wis. 70; 79 N.W. 32) and "an
issue involving determination of the ... intent of a person or persons with respect
to acts done by them is a question of fact for the jury. (64 C.J. 365). emphasis
ours.

In Rapatan vs. Chicano G.R. No. L-13828, February 25, 1960, We likewise said:

But the trial court did not merely dismiss the complaint, proceeded to receive
evidence on the counterclaim of defendants. In this respect the trial court said
"With respect to the counterclaim alleged in the amended answer of the said
defendants, the preponderance of evidence discloses that the imputations
contained in the complaint that the late Escolastico G. Chicano, husband of Coleta
de Chicano and father of Elpidio Chicano had acquired the land in question from
the plaintiffs through fraud and that the said defendants "taking advantage of the
ignorance of the plaintiffs herein managed fraudulently to transfer the tax
declaration of the land in question in the name of the plaintiffs to the name of
defendants, are false, malicious and defamatory to the memory of the late
Escolastico Chicano and the reputation of his heirs, Elpidio Chicano and Coleta
de Chicano, thus causing the latter mental anguish, besmirched, reputation,
wounded feelings, moral shock and similar injuries," and accordingly, ordered
plaintiffs to pay the sum of P5,000.00 as moral damages.

Considering that the foregoing finding is a question of fact which involves an

evaluation of the evidence and the same is now assigned as error, we are of the
opinion that this case comes within the appellate jurisdiction of the Court of
Appeals.

We have also held, however, that, in extreme cases calling for the exercise of our supervisory
jurisdiction, We may disturb or reverse any particular finding of fact of the Court of Appeals
should We find it to be arbitrary or whimsical or entirely outside the issues raised by the parties
in their respective pleadings.

In De Luna vs. Linatoc, 74 Phil. 15, answering our own question: "When may the Supreme
Court review such deduction of fact based on uncontroverted or plain evidence?", We said:

... Only when reasonable men readily agree that the inference is manifestly mistaken,
absurd or impossible. If however, fair-minded men may differ on whether or not the main
conclusion of fact is rightly drawn from the undisputed evidence, the Supreme Court
should not, as a rule, inquire into the discretion exercised by the Courts of Appeals. The
instant case is of the latter category, because the findings of the Court of Appeals that
there has been no deceit may or may not be persuasive, according to one's own reasoning
after reading the decision and resolution of that court. It cannot be said that fairminded
men will not differ in this case on the existence of fraud.

Then, in Evangelista vs. Alto Surety and Insurance Co., Inc., speaking through the present Chief
Justice, We said:
 Considering, therefore, that neither the pleadings, nor the briefs in the Court of Appeals,
raised an issue on whether or not copies of the writ of attachment and notice of
attachment had been served upon Rivera; that the defendants had impliedly admitted —
in said pleadings and briefs, as well as by their conduct during the entire proceedings,
prior to the rendition of the decision of the Court of Appeals — that Rivera had received
copies of said documents; and that, for this reason, evidently, no proof was introduced
thereon, we are of the opinion, an so hold that the finding of the Court of Appeals to the
effect that said copies had not been served upon Rivera is based upon a misapprehension
of the specific issues involved therein and goes beyond the range of such issues, apart
from being contrary to the aforementioned admission by the parties, and that,
accordingly, a grave abuse of discretion was committed in making said finding, which is,
furthermore, inaccurate.

In connection with all the foregoing, the following facts are either undisputed or fully borne by
the evidence.

Ciriaca Angelo was the owner of the parcel of land located in barrio Alpaye, Rosario, Batangas,
with an area of approximately 20,102 sq.m., subject of the petition for summary settlement
mentioned at the beginning of this decision. It was registered in her name under Original
Certificate of Title No. 370. She had only one child, a daughter by the name of Crisanta Ilagan,
married to Fermin Fortus. This couple had an only son, the deceased Victorino Fortus. As
Crisanta Ilagan predeceased her mother, Ciriaca Angelo, who died intestate sometime in the year
1930, the property aforesaid passed on to Victorino Fortus as the lone surviving heir of his
grandmother. It is a fact, however, that he never caused the original certificate of title covering
the property to be cancelled and to have another issued in his name.

It is not disputed that Victorino Fortus and Julia T. Fortus were husband and wife and that up to
Victorino's death on January 8, 1954 they were childless. It is similarly admitted that at the time
of his death, Victorino had been estranged from his wife for a number of years and had been
living maritally with another woman named Felicidad Gonzales Pena. Out of this illicit relation,
however, no issue was begotten.

That the property is now covered by transfer certificate of title No. 6831 issued by the Registrar
of Deeds of Batangas is due to the fact that upon Victorino's death, his widow, Julia T. Fortus,
executed the required affidavit of extra-judicial summary settlement and had it registered in
accordance with law. By reason thereof, original certificate of title No. 370 was cancelled and
the transfer certificate of title already referred to was issued in Julia's name. In this connection,
the Fortuses (page 7 of the their brief) make the claim that in her affidavit in connection with the
extra-judicial settlement of the estate of Ciriaca Angelo, Julia had "falsely represented the
original owner Ciriaca Angelo to be her grandmother." While this alleged falsehood is
unsubstantial, We venture the observation that Julia's statement contained no real falsehood, for,
indeed, Ciriaca was the grandmother of her husband and therefore her own grandmother-in-law.

As Rosario Novero did not appeal from the decision of the Court of Appeals, it is now proper to
say something only about the claim of the Fortuses — that they are Victorino's legitimate half-
brothers and sisters, being the legitimate children of Fermin Fortus (father of Victorino) and
Jacoba Aguil who were allegedly married sometime between 1902 and 1905 before Isabelo
Bolanos, at that time justice of the peace of the municipality of Rosario, Batangas.

As correctly held by the court of origin (Court of First Instance of Lipa City) it was incumbent
upon the Fortuses to prove their affirmative allegations that Fermin and Jacoba were legally
married and that they, the Fortuses, are their legitimate children.

According to the record, the presentation of the evidence of the parties began before Judge
Conrado Vasquez; was later continued before Judge Luis B. Reyes; and when both were
transferred to other judicial districts the hearings were continued before Judge Damaso S.
Tengco, who penned the decision of the court. These circumstances are here stated to show that
Judge Tengco cannot be said to have rendered his decision relying only upon the transcript of
the testimonial evidence.

In connection with the vital question of fact involved, His Honor's decision says:

Are the Fortuses legitimate half-brothers and sisters of Victorino Fortus? The property
involved in this proceeding came from Ciriaca Angelo, and passed to Victorino Fortus
through his mother Crisanta Ilagan, daughter of the former. The Fortus brothers and
sisters are children of Fermin Fortus, father of Victorino Fortus, and a certain woman by
the name of Jacoba Aguil. The Fortuses maintained that the petitioner not being an
illegitimate daughter of Victorino Fortus, they are entitled to inherit the one-half portion
of the property left by their deceased brother, Victorino Fortus. Their right is based upon
their assertion that their father Fermin Fortus and Jacoba Aguil were legally married.

The Fortuses brothers and sisters failed to present a valid document of marriage between
Fermin Fortus and Jacoba Aguil. They maintained that it was lost during the last global
war. In many cases it has been observed by this Court that a party who is claiming a right
by virtue of a document usually finds it convenient to allege that the said document was
lost during the last global war, when in fact and in truth there was no such document. The
instant case is one of the many cases wherein a party allege to have lost a document
which never existed.

Attempts were made by the Fortuses brothers to lay the basis for the introduction of a
secondary evidence as to the existence of a marriage contract and/or celebration thereof,
but said evidence did not satisfy the requisites required by law. Section 51, Rule 123 of
the Rules of Court, provides that when the original writing has been lost or destroyed,
upon proof of its execution and loss or destruction, its contents may be proved by a copy
or by a recital of its contents in some authentic document, or by collection of witnesses.
The question at issue now is, were the oppositors Fortuses able to prove the due
execution of the alleged marriage contract between Fermin Fortus and Jacoba Aguil or to
present satisfactory secondary evidence to that effect.

The testimony of David de Jesus, Jr. of the Division of Archives, National Library,
Manila, who identified Exhibit "5" clearly established that there existed no records of
such marriage. This statement was corroborated by Clemente Barbosa, a clerk in the
office of the Municipal Treasurer of Rosario, Batangas that there were no records of such
marriage from 1902 to 1922 of the Municipality of Rosario, Batangas. So that the
conclusion is now inevitable that when the pre-war records were burned as per Exhibit
"7", the imaginary record of marriage of Fermin Fortus and Jacoba Aguil could not have
been included, as it never existed at all.

The testimony of Jacoba Aguil which is purely self-serving and which was contradicted
by a sincere witness, Felicidad Blay, cannot serve as a basis to establish the celebration of
the marriage in question. Neither could said marriage be established by the contradicting
statements of Clemente Fortus and Pio Fortus. Both claimed to have seen the marriage
contract. Clemente Fortus said that it was written in Tagalog while Pio said it was written
in Spanish.

The Court was at a loss to understand who of them was really sincere. Considering that
both Clemente and Pio were presented as material witness to prove the existence of the
alleged marriage contract and the fact that they materially contradicted each other on the
substantial contents of the said contract, the conclusion is imperative that neither one of
them should be believed. Viewed from these findings, the Court could not sustain the fact
that secondary evidence has been established by the Fortuses brothers and therefore there
can be no basis for their claim of legitimacy.

Disregarding the principle of primary or best and secondary evidence, still the Court
believes that the other testimonial evidence as well as documentary evidence adduced do
not establish their claim. Jacoba Aguil's testimony was replete with inconsistencies and
impossibilities. She could not remember on what part of the page of the marriage contract
she placed her thumbmark; that she placed her thumbmark only once, which is rather
contrary to the practice that it should be more than one; that she could not state whether
the alleged marriage contract was not in longhand or typewritten or printed; that she
never went to Batangas, Batangas, and knew nobody there, contrary to the statement
given by Felicidad Blay who has no false motive to tell a lie and also found to be a
sincere witness; that she never saw again the marriage contract she allegedly
thumbmarked since they were married, (Clemente and Pio declared though that they saw
it in the aparador and also saw that the aparador together with the controversial marriage
contract were burned during the Japanese occupation) and that it was lost only during the
Japanese time. By all these testimonies Jacoba Aguil has failed to make this Court
believe in the existence of her marriage.

The deposition of Victoriana Guerro was presented. Victoriana Guerro was a relative of
Jacoba Aguil and she could not be expected to be unbiased. Her description of the
celebration of marriage between Fermin and Jacoba was contrary to the existing
procedure prescribed by the then existing marriage law. The marriage law which was
then in existence was general orders No. 68 which took effect on December 24, 1929.
The formalities mentioned by Victoriana Guerro and Jacoba Aguil were the formalities
prescribed in the present law, Act No. 3613, and therefore the conclusion is inevitable
that these witnesses were telling a lie. In the year 1902 or 1903 when the alleged
marriage of Fermin Fortus and Jacoba Aguil was celebrated General Orders No. 68 which
was then the law on marriage did not require the contracting parties or the so-called
witnesses or padrinos to sign the marriage contract. What the law then required only as to
the proof of the celebration of marriage was a certificate of the parish priest or the justice
of the peace or judge containing the full names of the parties, their residence, ages and
the consent of the father and mother or guardian and nothing else. It was only the father
who signed a form giving consent to his or her child of minor age to the contract of
marriage. Nothing more was necessary. On this score that Court believes that the
witnesses for the Fortuses brothers and sisters and the Fortuses themselves made a story
which was of their own concoction. In the light of these findings and observations the
Court was of the considered opinion that Fermin Fortus and Jacoba Aguil were not
legally married. And if they were not legally married, the Fortuses brothers and sisters
were illegitimate children and have no right to succeed to the properties of either Ciriaca
Angelo or that of Victorino Fortus. Article 992 of the New Civil Code provides that an
illegitimate child has no right to inherit ab intestato from the legitimate children and
relative of his father and mother, nor such children or relative inherit in the same manner
from the illegitimate children.

Exhibit "2" is not an evidence of legitimacy much less of marriage between Fermin
Fortus and Jacoba Aguil. It is a baptismal certificate and it does not serve as proof of
relationship of or filiation of the child baptized. "The record of baptism as a general rule,
in all documents, attest to the fact which give rise to its issue, and the date thereof, to wit,
the fact of the administration of the sacrament on the date stated, but not the truth of the
statements therein made as to the parentage of the child baptized." (Basa, et al. vs.
Arquiza, et al., 5 Phil. 187.) "The aforementioned canonical certificate is conclusive
proof only of the baptism administered, in conformity with the rites of the Catholic
Church by the priest who baptized the child but it does not prove the veracity of the
declarations and statements contained in the said certificate that concern the relationship
of the person baptized. Such declarations and statements, in order that their truth may be
admitted, must indispensably be shown by some of the kinds of proof recognized by
law." (Adriano vs. de Jesus, 23 Phil. 353)

Exhibit "4" likewise is not a proof of marriage nor could it be a prima facie evidence of
legitimacy of Roman Fortus, the eighth child of Jacoba Aguil had with Fermin Fortus.
The authority cited by the Fortuses brothers and sisters to wit: Crisolo vs. Judge
Macadaeg, L-7017, promulgated April 29, 1954, is not square on the point, because
while that case was decided under the authority of Act 3753 which took effect on
February 26, 1931, Roman Fortus was born on February 28, 1922, long before the
effectivity of the subsequent law. Even assuming that Act No. 3753 is applicable to
Roman Fortus, it was only a prima facie proof which oppositor Julia T. Fortus had
overcome by satisfactory evidence to the effect that Fermin Fortus and Jacoba Aguil were
never married and hence all of their children are not legitimate brothers or half-brothers
and therefore have no right to inherit from Victorino Fortus under Article No. 992 of the
New Civil Code. Likewise, Exhibit "9-B" and "9-C" could not support the claim that
Fermin Fortus was married to Jacoba Aguil, because even granting that Fermin Fortus got
married, the name Jacoba Aguil was not mentioned as the name of the woman who
became his wife. Of all the children of Jacoba Aguil, it was only the baptism and/or birth
 certificate of Roman Fortus that was presented. The status of Catalino, Demetria,
Clemente, Zoilo, Pio and Francisco Fortus were left out.

The brief filed by the Fortuses in the Court of Appeals makes the following assignment of errors:

The trial court erred in finding that petitioners' parents, Fermin Fortus and Jacoba Aguil,
were not legally married:

(1) By holding that the legal presumption of marriage was overcome by Exhibit 5 and by
the testimony of Clemente Barbosa;

(2) By construing the certification Exhibit 5 without reference to Act No. 3022 and the
explanatory testimony of David de Jesus, Jr. of the Bureau of Public Libraries;

(3) By holding that Exhibits 2, 4, 9-B and 9-C did not constitute a proof of marriage
between Fermin Fortus and Jacoba Aguil, much less a proof of the legitimacy of the
oppositors Fortuses; and

(4) By not applying the law and applicable decisions of the Supreme Court to the
undisputed facts of this case.

The above assignment of errors makes it obvious that the only issues submitted to the Court of
Appeals were factual, namely, whether or not Fermin Fortus and Jacoba Aguil were ever
married, and whether or not the Fortuses had established their contention by at least
preponderance of evidence. That the first question is one of fact need not be demonstrated — the
same being obvious. It is likewise beyond doubt that the second issue is factual, because it
involves evaluation of the conflicting evidence presented by the contending parties.

Considering the nature of the issues before it, the Court of Appeals made a thorough review of
the evidence in the light of the respective contentions of the parties, and thereafter said the
following:

The Fortuses brothers and sisters, who are one of the oppositors in this case, claimed that
they were all the legitimate half-brothers and sisters of the deceased Victorino Fortus as
they were the legitimate children of Fermin Fortus — who is also the father of Victorino
Fortus — and Jacoba Aguil who were legally married between 1902 and 1905 before
Isabelo Belenos, then the Justice of the Peace in the poblacion of Rosario, Batangas, in
the house of Victoriana Guerro that after the solemnization of the marriage the couple
was issued marriage contract but the same was burned during the Japanese occupation.
For this purpose, to prove the existence of marriage between Fermin Fortus and Jacoba
Aguil as well as the unavailability of the record of births of their children — the Fortuses
— a certification to the effect that all pre-war public documents in the municipality of
Rosario, Batangas, were burned (Exhibit 7) was offered as evidence. Thus, these
oppositors tried to establish by secondary evidence — the weight and credence of which
we shall discuss later on — the existence of the marriage between Fermin Fortus and
Jacoba Aguil whom they alleged lived together as husband and wife for almost 30 years
and were never separated during their marital union.

We now come to the Fortuses brothers and sisters who all claim to be the half-brothers
and sisters of Victorino Fortus. There seem to be no dispute on the evidence on record
that the Fortuses were the children of Fermin Fortus and Jacoba Aguil. The only question
to be passed upon in this instance is whether or not the spouse Fermin Fortus and Jacoba
Aguil were legally married to entitle their children to successional rights and inherit from
their alleged brother Victorino Fortus. This is so because Article 992 of the New Civil
Code provides that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relative of his father and mother nor such children or relative
inherit in the same manner from the illegitimate children. The Fortuses maintained that
their parents were legally married, but that the marriage certificate issued to said couple
was burned during the second global war. Thus, they tried to establish by secondary
evidence the existence of said marriage contract or the solemnization of said marriage. At
this instance the oppositors Fortuses invoked that since for the past 30 years their parents
had deported themselves in public as husband and wife and had been living under the
same roof, the legal presumption is that they had entered into a lawful marriage. This
presumption, however, is only applicable where there is no clear and concrete evidence
showing otherwise. In this case, however, there is a certificate from the Division of
Archives (Exhibit "5") to the effect that "no copy of the marriage record of spouses
Fermin Fortus and Jacoba Aguil supposed to have been solemnized in the year 1902 and
1905 in the Municipality of Rosario, Batangas had been received by said office for file",
and this certification is further strengthened by the affirmation of Clemente Barbosa, a
clerk in the office of the municipal treasurer of Rosario, Batangas, that there was no
record of such marriage supposedly contracted between the spouses Fermin Fortus and
Jacoba Aguil from 1902 and 1922 of the Municipality of Rosario, Batangas. Such being
the case, if it were true that the parents of the Fortuses contracted marriage sometime in
the year 1902 to 1905 said marriage should have been recorded and a copy thereof should
have been filed either in the Civil Registrar's Office of said municipality or in our
Archives Division where public records are officially kept intact. It is true that Jacoba
Aguil on the witness stand categorically stated that they were legally married before
Isabelo Beleños, who was then the Justice of the Peace of poblacion Rosario, Batangas,
in the house of Victoriana Guerro; that during the solemnization of the marriage, they
were even required to raise their hands after Jacoba Aguil was required to thumbmark
only once the marriage contract; and that after the solemnization of the marriage, a
marriage contract was issued in their favor but which unfortunately was burned during
the Japanese occupation. In corroboration to the testimony of Jacoba Aguil who
resolutely averred her marriage with her husband, a deposition of Victoriana Guerro was
presented. We find, however, the versions of Jacoba Aguil and Victoriana Guerro to be
replete of inconsistencies and improbabilities after painstakingly examining their entire
testimonies and/or versions. It is noteworthy to observe that at the time when said
spouses allegedly contracted marriage, the law which was then in force to those who
would contract marriage was General Orders No. 68. Under this law, neither the
contracting parties, witnesses or padrinos were required to sign the marriage contract.
What the law required then was only for the father to sign a form giving his consent to his
son or his daughter of minor age to the contract of marriage, as to the proof of the
celebration of marriage, no marriage certificate was issued to the contracting parties, but
merely a certification of the Parish Priest or Justice of the Peace or Judge, containing the
full names of the parties, their residence, ages, and the consent of the father and mother
or guardian, attesting to the celebration of marriage. Accordingly, therefore, the
formalities mentioned by Jacoba Aguil as well as her witness Victoriana Guerro were the
formalities required under the present law. And for this matter, it is clear that the
pretension of Jacoba Aguil as to the existence of her marriage with Fermin Fortus is
highly improbable and incredible, which do not deserve even a scant consideration.
Analyzing further the credibility of Jacoba Aguil, the lower court had keenly observed
that —

She could not even remember on what part of the marriage contract she placed her
thumbmark; that she placed her thumbmark only once which is rather contrary to
the practice that it should be more than one; that she could not state whether the
alleged marriage contract was in long hand or typewritten or printed; that she
never went to Batangas, Batangas, and knew nobody there contrary to the
statement given by Felicidad Blay who has no false motive to tell a lie and was
found to be a sincere witness; that she never saw the marriage contract she
allegedly thumbmarked since they were married, (Clemente and Pio declared
though that they saw it in the aparador and also saw the aparador together with the
controversial marriage contract were burned during the Japanese occupation.)

Finding this observation of the trial court to be in accordance with the evidence obtaining
in this case, we do not feel justified to disturb its findings in not giving credence to the
versions of Jacoba Aguil, there being no circumstance of weight or influence that was
misinterested or overlooked upon by the court below in appreciating her credibility.

Further, in their vain attempt to prove the contractual marriage between Fermin Fortus
and Jacoba Aguil, the Fortuses adduced secondary evidence consisting of Exhibits "2", 4,
9-B and 9-C. All these exhibits, however, do not clearly show nor the same constitute as
a proof of marriage between Fermin Fortus and Jacoba Aguil, much less a proof of the
legitimacy of the oppositors Fortuses. The court below correctly ruled that Exhibit "2" is
not an evidence of legitimacy much less of marriage between Fortus and Jacoba Aguil.
For it is merely a true copy of a baptismal certificate of oppositor appellant Roman
Fortus. The rule is settled that the record of baptism attests to the fact of the
administration of the sacrament on the date stated therein, but certainly not the truth of
the statements therein made as to the parentage of the child baptized. As held by the
Supreme Court: "Neither are the baptismal certificates (Exhibits C and D) public
documents or public writings, because the parochial records of baptisms are not public or
official records, as they are not kept by public officers, and are not proof of relationship
or filiation of the child baptized." (Adriano vs. de Jesus, 23 Phil. 353; Pareja vs. Paraiso,
et al., G.R. No. L-5624, May 31, 1954). As regards Exhibit '4', the court below in
declaring the same not a proof of marriage nor could it be a prima facie evidence of
legitimacy of Roman Fortus, who is the eight child of Jacoba Aguil which she had with
Fermin Fortus, reasoned out, to which we subscribe, that:
 The authority cited by the Fortuses brothers and sisters to wit: Crisolo vs. Judge
Macaraeg L-7017, promulgated April 29, 1954, is not square on the point,
because while that case was decided under the authority of Act 3753 which took
effect on February 26, 1921, Roman Fortus was born on February 28, 1922, long
before the effectivity of the subsequent law. Even assuming that Act No. 3753 is
applicable to Roman Fortus, it was only a prima facie proof which oppositor Julia
T. Fortus had overcome by satisfactory evidence to the effect that Fermin Fortus
and Jacoba Aguil were never married and hence all of their children are not
legitimate brothers or half brothers and therefore have no right to inherit from
Victorino Fortus under Article No. 922 of the New Civil Code.

With respect to Exhibits 9-B and 9C which was a "Escritura de Compra y Venta"
executed by Fermin Fortus; and wherein Fermin Fortus was reflected as a married man,
the same does not clearly establish the claim of the oppositors Fortuses that their parents
were legally married, for the name Jacoba Aguil was not mentioned therein as the spouse
of Fermin Fortus. On the contrary, this piece of evidence is obviously the reflection of his
actual being married with his lawful wife Julia Fortus.

It is obvious from the foregoing quotations that the trial court and the Court of Appeals, relying
upon similar if not identical reasons, found that Victorino Fortus and Jacoba Aguil were never
married. We do not believe anyone can say that "reasonable men (will) readily agree" that such
finding of fact is "manifestly mistaken, absurd or impossible" (De Luna vs. Linatoc, supra). To
the contrary, We are of the opinion that fair minded men may differ on whether or not such
finding of fact is right, or "is rightly drawn from the undisputed evidence" (idem). Consequently,
the present case is not one calling for the exercise of either our appellate or supervisor
jurisdiction for the purpose of reversing the finding of fact aforesaid made by the Court of
Appeals and, before it, by the trial court.

WHEREFORE, the appealed decision is hereby affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Makalintal, J., took no part.

HEIRS OF GORGONIO MEDINA, G.R. No. 177505

namely: LEONOR T. MEDINA,
RAMON T. MEDINA, ABIEL T.
MEDINA, ILUDIVINA M.
ROSARI, CONCEPCION DE LA
CRUZ, LEONOR M. BAKKER,
SAMUEL T. MEDINA, VICTOR T. Present:
MEDINA, TERESITA M.
YNARES-SANTIAGO, J.,
SABADO, JOSEFINA M. CANAS
and VERONICA M. DE GUZMAN. Chairperson,

Petitioners, AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

- versus - REYES, JJ.

BONIFACIO NATIVIDAD,
represented by PHILIP M.
NATIVIDAD,

Respondent.

Promulgated:

November 27, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the 1997

Rules of Civil Procedure which seeks to set aside the Decision1[1] of the Court of
Appeals dated 20 November 2006 in CA-G.R. CV No. 82160 affirming with
modification the Decision2[2] of Branch 33 of the Regional Trial Court (RTC) of
Guimba, Nueva Ecija, in Civil Case No. 1165-G and its Resolution3[3] dated 16
April 2007 denying petitioners motion for reconsideration.

The factual antecedents are as follows:

On 16 May 1969, Tirso Medina, Pacifico M. Ruiz, Gorgonio D. Medina,

Vivencio M. Ruiz, and Dominica Medina, co-owners of a parcel of land (Lot 1199,
Cad-162, Guimba Cadastre, plan Ap-23418) situated in Poblacion, Municipality of
Guimba, Province of Nueva Ecija, containing an area of two thousand three
hundred thirty nine (2,339) square meters, agreed to divide and allot for themselves
the said land. A sketch4[4] signed by the co-owners showed the respective portions
of land allotted to each. Gorgonio D. Medina received two portions of said land.
One portion was allotted to him alone, while the second portion was allotted to him
together with Tirso Medina and Pacifico M. Ruiz. This second portion is labeled as
Gorgonio Medina, Tirso Medina and Pacifico M. Ruiz which is adjacent to the
portion labeled as Dominica Medina.

On 29 March 1972, Gorgonio D. Medina, predecessor-in-interest of

petitioners, executed a Deed of Absolute Sale5[5] whereby he sold to respondent
Bonifacio Natividad for P2,000.00 his share (1/3) in the second portion of land
including the improvements found therein.

Subsequently, a case for Partition with Damages, docketed as Civil Case No.
781-G, was filed before the RTC of Guimba, Nueva Ecija, Branch 33, by Tirso
Medina against the co-owners of Lot 1199, among whom are Gorgonio Medina
and Bonifacio Natividad. Bonifacio Natividad had likewise already bought the
share of Dominica Medina in the land.

The parties entered into a compromise agreement which they submitted to

the Court. On 20 November 1989, the RTC approved the agreement and rendered
its decision based on the same.6[6] The Compromise Agreement as quoted by the
Court reads:

COMPROMISE AGREEMENT

COME NOW the parties, assisted by their respective counsel(s), and unto
this Honorable Court respectfully submit this Compromise Agreement in full and
final settlement of their differences, to wit:

1. The parties herein are the exclusive co-owners of that certain parcel of
land located at the Poblacion, Guimba, Nueva Ecija, known as Lot 1199, Guimba
Cadastre and more particularly described as follows:

A parcel of land (Lot 1199, of the Cadastral Survey of

Guimba Cad. 162, plan Ap-23418, L.R. Case No. G-51, L.R.C.
Record No. N-40711), situated in the Poblacion, Municipality of
Guimba, Province of Nueva Ecija. x x x containing an area of
TWO THOUSAND THREE HUNDRED AND THIRTY NINE
(2,339) SQUARE METERS, more or less. x x x.

xxxx

2. The herein parties recognize and acknowledge that their respective

shares in the property aforementioned as appearing in the aforesaid Original
Certificate of Title No. 130366 have been modified by agreement between them
to allot a portion thereof to their co-owner, Vivencio M. Ruiz, to compensate for
valuable services rendered to the parties vis--vis the said property, separate and
apart from his rightful share therein as participating heir of Maria Medina;

3. The plaintiff Tirso Medina hereby withdraws any/all statements

appearing on record which he may have made in said case in the course of his
testimony therein, and hereby asks the Honorable Court that said statements be
expunged or withdrawn from the record;

4. The foregoing considered, the parties have determined that it is to their

mutual convenience and advantage, and in accord with their common desire to
preserve and maintain the existing family harmony and solidarity to terminate
their present community of ownership in the property aforementioned by mutual
 agreement and adjudication, in the manner appearing in the Sketch Plan of
Partition attached as an integral part hereof as Annex A where the property is
subdivided into Lot 1, 2, 3, 4, 5, and 6 and adjudicated, as follows:

a. To Bonifacio Natividad, Lot No. 1, consisting of 480 square meters,

more or less, representing the interests of Dominica Medina which was sold to
him per document of Sale of Rights, Waiver and Renunciation appearing as Doc.
No. 367; Page No. 75; Book No. 10; Series of 1968 in the Notarial Register of
Atty.

b. To VIVENCIO M. RUIZ, Lot No. 3 consisting of 370.21 square meters,

more or less, as compensation for valuable services rendered; free and clear from
any/all liens or encumbrances whatsoever or from the claims of any person
whomsoever, except the present tenant/s thereon;

c. To the heirs of MARIA MEDINA, Lot No. 2 consisting of 370.21

square meters, more or less, without prejudice to sales and dispositions already
made by the respective heirs of their interests and participations therein;

d. To TIRSO MEDINA, Lot No. 4 consisting of 369.29 square meters,

more or less;

e. To the heirs of PACIFICO M. RUIZ, Lot No. 5 consisting of 369.29

square meters, more or less, and

f. To GORGONIA MEDINA, Lot No. 6, consisting of 369.29 square

meters, more or less.7[7]

On 8 October 1991, the trial court issued an order supplementing its decision
dated 20 November 1989 which reads in part:

[T[hat the parties thereafter, engaged the services of one common geodetic
engineer in the person of Rolly Francisco to conduct the survey and effect the
subdivision of Lot 1199, which was subdivided into Lots A, B, C, D, E, and F, the
area of which appears, thus:
 Lot 1199-A with an area of 371 sq. ms., which lot now corresponds to Lot
No. 4 adjudicated to Tirso Medina;

Lot 1199-B with an area of 371 sq. ms., which lot now corresponds to Lot
No. 5 adjudicated to Pacifico Ruiz;

Lot 1199-C with an area of 371 sq. ms., which lot now corresponds to Lot
No. 6 adjudicated to Gorgonio Medina;

Lot 1199-D with an area of 482 sq. ms., which lot now corresponds to Lot
No. 1 adjudicated to Bonifacio Natividad;

Lot 1199-E with an area of 372 sq. ms., which lot now corresponds to Lot
No. 2 adjudicated to Heirs of Maria Medina; and

Lot 1199-F with an area of 372 sq. ms., which lot now corresponds to Lot
No. 3 adjudicated to Vivencio M. Ruiz; that in this subdivision made by the
geodetic engineer, there was no change in the designation of the particular places
adjudicated to the parties, except the change in areas allotted after the actual
survey made.

WHEREFORE, finding the motion to be in order, the Court resolves to

grant the same and hereby orders, that:

Lot 1199-A with an area of 371 sq. ms. is Lot 4, decision, adjudicated to
Tirso Medina;

Lot 1199-B with an area of 371 sq. ms. is Lot 5, decision, adjudicated to
Pacifico Ruiz;

Lot 1199-C with an area of 371 sq. ms. is Lot 6, decision, adjudicated to
Gorgonio Medina;

Lot 1199-D with an area of 482 sq. ms. is Lot 1, decision, adjudicated to
Bonifacio Natividad;

Lot 1199-E with an area of 372 sq. ms. is Lot 2, decision, adjudicated to
Heirs of Maria Medina;

Lot 1199-F with an area of 372 sq. ms. is Lot 3, decision, adjudicated to
Vivencio M. Ruiz.

This Order supplements the Decision dated November 20, 1989.8[8]

 Pursuant to the court-approved partition, Lot 1199-C, measuring 371 square
meters, was registered in the name of Gorgonio Median for which Transfer
Certificate of Title (TCT) No. NT-230248 of the Registry of Deeds for the
Province of Nueva Ecija was issued to him.9[9]

On 11 June 2001, Bonifacio Natividad, thru his alleged Attorney-In-Fact,

Philip M. Natividad, filed before the RTC of Guimba, Nueva Ecija, Branch 31, a
Complaint for Annulment of TCT No. NT-230248 and Damages.10[10] It
impleaded as respondents Abiel Medina and Veronica de Guzman who are
occupying the said land. Bonifacio asks, among other things, that 1/3 of said land
be surrendered to him because he had bought the same from Gorgonio Medina. In
the Answer11[11] filed by Abiel Medina and Veronica de Guzman, they argued,
inter alia, that Philip Natividad had no legal capacity to sue because the Special
Power of Attorney annexed to the Complaint did not grant him such authority.
They further added that the Complaint failed to implead all the parties-in-interest
considering that the ownership of the land covered by TCT No. NT-230248 had
already passed to eleven heirs of Gorgonio Medina.
 Bonifacio, thru Philip, filed a Motion for Bill of Particulars12[12] praying
that an order be issued by the court directing Abiel Medina and Veronica de
Guzman to give the names and present addresses of all the heirs of Gorgonio
Medina. Said motion was opposed.13[13] In an order dated 15 October 2001, the
trial court granted the motion.14[14] Defendants complied with the courts order
and submitted the names and addresses of all the heirs of Gorgonio Medina.15[15]

On 7 January 2002, Bonifacio filed a Motion for Leave to Admit Amended

Complaint with prayer that summons upon eight heirs be made through
publication.16[16] The Amended Complaint impleaded all the heirs of Gorgonio
Medina (petitioners herein). In said amended complaint, a special power of
attorney17[17] dated 21 September 2001 allegedly executed by Bonifacio Natividad
in the State of Washington, United States of America, and acknowledged before
Phyllis Perry, a Notary Public of the State of Washington, USA, was attached
authorizing Philip Natividad to:

1. To file all appropriate cases in court against the heirs of Gorgonio Medina for
the recovery of the lot that I purchased from said Gorgonio Medina by virtue
of Deed of Absolute Sale executed on March 29, 1972 and notarized by Atty.
Inocencio B. Garampil under Doc. No. 435, Page No. 87, Book No. 1, Series
of 1972, which lot is now titled in the name of Gorgonio Medina under
Transfer Certificate of Title No. NT-230248;

2. To institute all legal actions/cases in court for the annulment of said Transfer
Certificate of Title No. NT -230248 which now covers the lot I bought from
Gorgonio Medina;

3. To represent me in all proceedings/hearings of the above-mentioned case/s up

to its termination;

4. To enter into a fair and reasonable compromise agreement and do all acts for
the protection and preservation of my rights and interest over the above-
mentioned lot;

5. To negotiate/transact with all persons, secure and sign all necessary

documents for the attainment of the above purposes.
 In an Order dated18[18] 30 January 2002, the trial court approved the
motion and admitted the Amended Complaint. It directed the issuance of the
corresponding summons, the same to be published in a newspaper of general
circulation for three consecutive weeks. As to plaintiffs authority to sue, the trial
court ruled that said issue had been settled by the special power of attorney
attached to the Amended Complaint.

On 17 May 2002, the heirs of Gorgonio Medina filed a Motion to

Dismiss19[19] which the trial court denied on 20 August 2002.20[20] On 10
September 2002, the heirs filed their Answer raising the following defenses:
prescription, laches, lack of cause of action, lack of legal capacity to sue by
Attorney-in-Fact, indefeasibility of TCT No. NT-230248 and lack of jurisdiction
over the case for failure of the plaintiff to comply with the mandatory requirement
of the Katarungang Pambarangay. Plaintiff filed his Reply dated 18 September
2002 specifically denying the allegations contained in the Answer with
Compulsory Counterclaim.21[21]
 During the Pre-Trial, the parties stipulated the following facts and issues:

a. TCT No. N-230248 in the name of Gorgonio Medina covers 371 square meters.
This title was one of the titles issued as transfer from Original Certificate of Title
No. 130366.22[22]

b. TCT No. 230248 came into being by virtue of the decision in Civil Case No.
781-G, a case of partition among Gorgonio Medina and his co-heirs decided by
RTC Branch 33.

c. The late Gorgonio Medina executed a Deed of Absolute Sale over 1/3 portion
of his share in a parcel of land (Lot 1199, CAD-162 Guimba Cadastre) owned in
common by him and his co-heirs.

d. The land subject of the deed of sale is not the one covered by TCT No. 230248.

Issues:

1. Whether the deed of sale of sale may be given effect notwithstanding the fact
that the subject thereof is different from the portion covered by TCT No. 230248.

2. Whether Mr. Philip Natividad is duly authorized to represent his father,

Bonifacio Natividad in this case.23[23]

The parties manifested that after they shall have filed their respective
memoranda, the case shall be submitted for decision.
 In its decision dated 10 December 2003, the trial court ruled in favor of
Bonifacio Natividad. The decretal portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff

ordering the defendants to convey to the plaintiff 1/3 portion of the lot covered by
TCT No. 230248 together with the improvements thereon and to account for, and
deliver to the plaintiff the income derived therefrom from the institution of this
case up to the execution of this decision.

No pronouncement as to damages there being no reservation made by the

plaintiff to present evidence thereof.24[24]

On the issue of Philip Natividads authority to represent his father, the court
ruled that it was convinced that Philip was authorized to represent his father by
virtue of a notarized special power of attorney executed by Bonifacio attached to
the amended complaint. It explained that the document was a public document as
defined under Section 20, paragraph (a) of Rule 132 of the Rules of Court, the
same having been notarized by a notary public for the State of Washington, USA.
In the absence of any evidence to show that said special power of attorney was
falsified, it was sufficient authority for Mr. Natividad to represent his father.

The trial court likewise ruled that the deed of absolute sale executed by
Gorgonio Medina in favor of Bonifacio Natividad may be given effect
notwithstanding the fact that the portion of Lot 1199 specified as its object was
different from the portion adjudicated to Gorgonio Medina. It declared that the 1/3
portion of the land covered by TCT No. NT-230248 shall be deemed the object of
the deed of sale. It agreed with Bonifacio that what was sold by Gorgonio Medina
to him (Bonifacio) was his share, right and participation in the land known as Lot
1199. At the time of the sale, Lot 1199 was not yet divided. Gorgonio Medina
specified a portion of Lot 1199, expecting that portion to be adjudicated to him, but
his expectation did not materialize because a different portion was adjudicated to
him during the partition. It added that justice demanded that a portion of what was
adjudicated to him be considered as the object of the deed of sale.

The trial court further ruled that prescription and laches did not set in. Since
there was an express trust created between Gorgonio Medina and Bonifacio
Natividad, the action to compel the defendants to convey the property to Bonifacio
did not prescribe. It explained that it is only when the trustee repudiates the trust
that the prescriptive period of 10 years commences to run. In the instant case,
Gorgonio Medina (trustee) repudiated the trust on 5 July 1993 when TCT No. NT-
230248 was issued in his name. Thus, the filing of the complaint on 11 June 2001
was well within the ten-year prescriptive period.

On 22 December 2003, the petitioner-heirs of Gorgonio Medina filed a

Notice of Appeal informing the trail court that they were appealing the decision to
the Court of Appeals.25[25] A Notice of Appeal having been seasonably filed by
the petitioners, the entire records of the case were forwarded to the Court of
Appeals.26[26]

On 13 January 2004, Bonifacio Natividad filed a Motion for Execution

Pending Appeal27[27] which the trial court denied, it having lost jurisdiction over
the case because the appeal was already perfected when the motion was
filed.28[28]

On 20 November 2006, the Court of Appeals rendered its decision affirming

with modification the decision of the trial court. It disposed of the case as follows:

WHEREFORE, the Decision of the RTC, Branch 33, Guimba, Nueva

Ecija, dated December 10, 2003, is hereby AFFIRMED with the
MODIFICATION ordering the defendants-appellants to convey to plaintiff-
appellee an area equivalent to 90 square meters of the land covered by TCT No.
NT-230248.29[29]
 The appellate court affirmed the findings of the trial court, but ruled that the
trust established between the parties was an implied or constructive trust, and not
an express trust. It added that what should be conveyed to Bonifacio Natividad was
only 1/3 of 270 square meters or 90 square meters, and not 1/3 of 371 square
meters since what was sold to him was only a part of one of the two portions
owned by Gorgonio Medina in the entire lot. Finally, it declared that the contention
that the Complaint should have been dismissed for lack of cause of action,
considering that the Special Power of Attorney executed abroad by Bonifacio
Natividad in favor of his son was not properly authenticated before a consular
officer, put a premium on technicalities at the expense of substantial justice.
Litigation, it said, should, as much as possible, be decided on the merits and not on
technicalities.

Petitioners filed a Motion for Reconsideration30[30] which the Court of

Appeals denied in a resolution dated 16 April 2007.31[31]

Hence, the instant petition raising the following issues:

 WHETHER OR NOT THE COMPROMISE AGREEMENT THAT THE TRIAL
COURT APPROVED IN CIVIL CASE NO. 781-G NOVATED THE DEED OF
ABSOLUTE SALE DATED 29 MARCH 1972 BETWEEN GORGONIO
MEDINA AND BONIFACIO NATIVIDAD.

WHETHER OR NOT BONIFACIO NATIVIDAD IS ESTOPPED BY LACHES.

WHETHER OR NOT THE REGISTRATION OF LOT NO. 1199-C IN THE

NAME OF GORGONIO MEDINA WAS IN FRAUD OF BONIFACIO
NATIVIDAD.

WHETHER OR NOT A CONSTRUCTIVE TRUST WAS CREATED

BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD.

WHETHER OR NOT BONIFACIO NATIVIDADS CAUSE OF ACTION HAS

ALREADY PRESCRIBED.

WHETHER OR NOT THE COMPLAINT STATES A CAUSE OF ACTION.

Among the issues raised by petitioners the last is what we shall first tackle.
Petitioners contend that the Court of Appeals committed a very grave error in not
finding that the respondent was without any cause of action. Petitioners argue:

The Complaint in this case was instituted by Philip M. Natividad in the

name of Bonifacio Natividad upon the strength of a Special Power of Attorney
executed by the latter in Washington, U.S.A. While the document appears to have
been acknowledged before Phyllis Perry, a Notary Public for the jurisdiction of
the State of Washington, U.S.A., it was not presented before a Philippine
Consular Officer for the requisite authentication.

The Revised Rules on Evidence require that a document acknowledged

before a notary public being a public document, such record if kept in a foreign
country, should be accompanied with a certificate that such officer has the
custody thereof made by a secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by an officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept,
authenticated by the seal of his office. In the absence of the requisite certification
 and authentication of the public document, the same cannot be proved and,
therefore, inadmissible as evidence.

Bonifacio Natividads Special Power of Attorney not having been duly

certified and authenticated, it cannot be duly proved. It is, therefore, deemed as
not having been executed for purposes of instituting an action on his behalf.
Without any valid authority to institute the action on behalf of his father, Philip
Natividad is deemed to have instituted it on his own. Philip Natividad not being a
party to the Deed of Absolute Sale between Gorgonio Medina and Bonifacio
Natividad, he is undoubtedly not the real party in interest because he does not
have any material interest in the contract which is the source of Bonifacio
Natividads cause of action. He does not stand to be benefited or injured by a
judgment in the suit and neither is he entitled to the avails of the suit.

Not being the real party in interest, and being deemed to have brought the
action on his own, Philip M. Natividad has no cause of action.32[32]

The trial court was convinced that Philip Natividad was authorized by his
father (Bonifacio) in this case by virtue of the special power of attorney that the
latter issued. The special power of attorney, it claims, is a public document, the
same having been notarized by a notary public of the State of Washington, USA. It
said that there being no evidence showing that said document had been falsified,
the same was sufficient authority for Philip to represent his father. The Court of
Appeals considered the fact that the special power of attorney was not properly
authenticated before a consular office to be a mere technicality and could not be
the basis for the dismissal of the complaint for lack of cause of action.

On his part, respondent said the notarized special power of attorney which
he appended to the complaint is a public document. It carries with it the
presumption of regularity and any suspicion on the authenticity and due execution
thereof cannot stand against said presumption absent evidence which is clear and
convincing.
 The question to be answered is: Is the Special Power of Attorney supposedly
authorizing Philip Natividad to file the instant case in behalf of his father
admissible in evidence?

In Lopez v. Court of Appeals,33[33] we have ruled that a special power of

attorney executed in a foreign country is, generally, not admissible in evidence as a
public document in our courts. In said case, we said:

Is the special power of attorney relied upon by Mrs. Ty a public

document? We find that it is. It has been notarized by a notary public or by a
competent public official with all the solemnities required by law of a public
document. When executed and acknowledged in the Philippines, such a public
document or a certified true copy thereof is admissible in evidence. Its due
execution and authentication need not be proven unlike a private writing.

Section 25,34[34] Rule 132 of the Rules of Court provides

Sec. 25. Proof of public or official record. An official record or an entry

therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the
 foreign country in which the record is kept, and authenticated by the seal of his
office.

From the foregoing provision, when the special power of attorney is

executed and acknowledged before a notary public or other competent
official in a foreign country, it cannot be admitted in evidence unless it is
certified as such in accordance with the foregoing provision of the rules by a
secretary of embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept of said public
document and authenticated by the seal of his office. A city judge-notary who
notarized the document, as in this case, cannot issue such certification.

Considering that the record of the case does not disclose any compliance
with the provisions of Section 25, Rule 132 of the Rules of Court on the part of
the petitioner, the special power of attorney in question is not admissible in
evidence. As such, Mrs. Priscilla L. Ty cannot lawfully prosecute the case against
the private respondents in the name of her principal as her authority through a
special power of attorney had not been duly established in evidence. The litigation
was not commenced by the real party-in-interest or by one duly authorized by the
said party.

This being so, the Metropolitan Trial Court, the Regional Trial Court and
the Court of Appeals never acquired jurisdiction over the person of the real party-
in-interest Angelita Lopez. For lack of the requisite jurisdiction, all the
proceedings in the said courts are null and void ab initio. All proceedings therein
should be and are hereby set aside.

Accordingly, it is Our considered opinion, and We so hold, that a special

power of attorney executed before a city judge-public notary in a foreign country,
without the certification or authentication required under Section 25, Rule 132 of
the Rules of Court, is not admissible in evidence in Philippine courts. (Emphasis
supplied.)

In the case under consideration, the supposed special power of attorney

involved was executed and acknowledged before Phyllis Perry, a Notary Public of
the State of Washington, USA. This being the case, a certification or
authentication, as required by Section 25 (now Section 24), Rules of Court, by a
secretary of the embassy or legation, consul general, consul, vice consul, or
consular agent or by any other officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office, is required. A notary public in a foreign country is not one of
those who can issue the required certificate.

The records are bereft of evidence showing that there was compliance with
Section 25 (now Section 24). Non-compliance therewith will render the special
power of attorney not admissible in evidence. Not being duly established in
evidence, the special power of attorney cannot be used by Philip Natividad to
represent his father, Bonifacio Natividad, in this legal action against the
petitioners. It is thus clear that this case was not filed by the real party-in-interest
(Bonifacio) or by one duly authorized by said party. Not being a real party-in-
interest and sans the authority to pursue the case, Philip Natividad could not have
validly commenced this case. The special power of attorney executed before a
notary public in a foreign country without the requirements mentioned in Section
25 (now Section 24) of the Rules of Court cannot be admitted in evidence before
Philippine courts.

Both lower courts and respondents contention that the lack of consular
authentication is a mere technicality that can be brushed aside in order to uphold
substantial justice, is untenable. The failure to have the special power of attorney
authenticated is not merely a technicality -- it is a question of jurisdiction. In
Lopez, we pronounced that jurisdiction over the person of the real party-in-interest
was never acquired by the courts. As a result, all proceedings in the lower courts
were declared null and void ab initio and thus set aside.
 In the case before us, the Regional Trial Court and the Court of Appeals did
not acquire jurisdiction over the person of Bonifacio Natividad. Following our
pronouncement in Lopez, all proceedings before these courts are voided and set
aside. In light of this, we find no need to discuss the other issues raised.

WHEREFORE, premises considered, the instant petition is GRANTED.

All the proceedings before the Regional Trial Court of Guimba, Nueva Ecija,
Branch 33 (Civil Case No. 1165-G) and the Court of Appeals (CA-G.R. CV No.
82160) are hereby declared void, and the case is hereby DISMISSED. No costs.

SO ORDERED.

MINITA V. CHICO -NAZARIO

Associate Justice
WE CONCUR:

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES

Associate Justice

ATTESTATION
 I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice